THE ATTORNEY AS MANDATORY REPORTER
HON. CAMILE GLASSOCK DUBOSE
38th Judicial District
Courthouse, Box 1
Uvalde, Texas 78801
Texas Department of Protective and Regulatory Services
710 W. 51sst Street
Austin, Texas 78714
State Bar of Texas
30TH ANNUAL ADVANCED FAMILY LAW COURSE
August 9-12, 2004
CAMILE GLASSCOCK DUBOSE:
Associate Judge, Child Protection Court of South Texas. The Associate Judge position exclusively handles
abuse and neglect cases in a ten county area in southwest Texas. Prior to this, Judge DuBose was the Assistant
District Attorney for the 38th Judicial District and is a former Bexar County prosecutor as well as a former
Regional Attorney for the Texas Department of Protective and Regulatory Services. Judge DuBose is a
graduate of Texas A&M University and St. Mary=s School of Law where she served as Associate Editor of the
St. Mary=s Law Journal. She is secretary/treasurer of the Medina County Bar Association, is a past president
and current member of the Uvalde County Bar Association, and is a member of the Texas Court Improvement
Project Committees on Court Technology and Training, the State Child Safety Review Committee of the Texas
Department of Protective and Regulatory Services, the Curriculum Committee of the Texas Center for the
Judiciary, and the National Council of Juvenile and Family Court Judges. Judge DuBose has spoken at
numerous Abuse and Neglect Conferences and was nominated for the 2002 Texas CASA Lone Star Proud for
Kids Judge of the Year Award.
CATHY O. MORRIS, J.D.
Chief Attorney, Field Operations, Texas Department of Protective and Regulatory Services,
710 W. 51sst Street, Austin, Texas 78714
Cathy O. Morris, J.D., is a native of Dallas, Texas. Ms. Morris graduated with honors from
the University of Texas at Austin, earning a bachelor’s degree in sociology and social work.
She received a Master’s of Science in Social Work from the university of Texas at
Arlington and a law degree from Southern Methodist University School of Law. During
law school, Ms. Morris participated in the Civil Law clinic and in the Lawyers Against
Domestic Violence organization. Ms. Morris worked for Child Protective Services in
Dallas, as a caseworker and supervisor, prior to attending law school. Upon graduation
from law school, she worked as a prosecutor for the Dallas County District Attorney’s
Office, representing Child Protective Services. Ms. Morris is currently working for the
Texas Department of Protective and Regulatory Service, serving as Chief Attorney for Field
Operations for the legal division.
She is the co-author of “Prosecutor’s Trial Checklist for Termination Cases,” with Associate
Judge Camile G. DuBose, presented for the Texas Children’s Justice Act project. Ms.
Morris has made presentations before various groups, including the Children’s Justice Act
annual prosecutors conference , the Advanced Judicial College Conference, and the Texas
Association of County and District Attorneys’ annual conference. Ms. Morris currently
serves on the board of directors of Hill Country Family Services and is a past president of
the Kendall County Bar Association.
The Attorney As Mandatory Reporter Chapter 53
TABLE OF CONTENTS
I. GENERAL OVERVIEW OF REPORTING LAWS .............................................................................................. 1
II. TEXAS STATUTORY REQUIREMENTS ........................................................................................................... 1
III. MANDATORY REPORTING LAWS ................................................................................................................... 2
IV. ATTORNEY-CLIENT PRIVILEGE ...................................................................................................................... 2
V. RULES OF PROFESSIONAL CONDUCT............................................................................................................ 2
VI. TEXAS AUTHORITY............................................................................................................................................ 3
VII. CONCLUSION ....................................................................................................................................................... 3
The Attorney As Mandatory Reporter Chapter 53
THE ATTORNEY AS MANDATORY Child abuse reporting statutes currently exist in all
fifty states.15 Many states impose mandatory reporting
REPORTER requirements on various professionals (without listing
attorneys among those professionals), and allow for
Hypothetical 1: Attorney X is meeting with John and
permissive reporting by any other person or
Jane Doe to go over some estate planning matters.
individual.16 Massachusetts’ statute simply provides
During the course of their meeting, attorney X learns
that “any person” may report suspected abuse and
that John and Jane Doe have recently completed
neglect,17 while Indiana, Utah and Wyoming require
marital counseling. Jane Doe discloses that
“any person” to report suspected abuse and neglect.
approximately nine months earlier, during an argument
(Emphasis added).18 Eleven states require both various
with her husband, their 11-year-old son intervened. As
professionals (without specific mention of attorneys),
a result, he was inadvertently injured by her husband.
and any other person to report suspected child abuse.19
This injury resulted in a trip to the hospital and
Wisconsin lists various professionals as mandatory
stitches. The hospital did not question the injury. Mr.
reporters, and then goes on to specifically include
Doe indicates that this incident caused him to seek
attorneys as persons who “may” report.20 Attorneys
counseling, and that the family has been in counseling
would fall into the list of persons required to report in
since that time.
the fourteen states that impose mandatory reporting
requirements on “any person”;21 however, many of
Hypothetical 2: Attorney X is meeting with Jane
these states limit the reporting requirement to
Smith regarding her wish to divorce from John Smith.
information obtained outside of the attorney- client
Mr. and Mrs. Smith have three young daughters. Mrs.
relationship.22 Six states have reporting statutes that
Smith indicates that Mr. Smith is physically abusive to
specifically list attorneys as mandatory reporters.23
her and her daughters. She also indicates that her
Three of those states limit the attorney’s duty to report
oldest daughter, aged 11, told Mrs. Smith that Mr.
to information obtained outside of the attorney-client
Smith was touching her in her “private places.”
relationship.24 Oregon requires attorneys to report
suspected child abuse and neglect unless the
Under Texas law, does attorney X have a duty to report
information is obtained in the course of the attorney-
the alleged child abuse described in hypothetical 1,
client relationship, the client is under the age of 18, and
hypothetical 2, neither, or both? This article will
the client is likely to suffer further harm as a result of
examine an attorney’s duty to report suspected child
the report.25 Texas and Mississippi are the only states
abuse and neglect in Texas by reviewing the history of
specifically mandating that attorneys report suspected
reporting laws, the law in other states and the law in
child abuse and neglect even if the information is
Texas. It will also address the attorney client privilege
obtained during the course of attorney-client
and how it is affected by the Texas reporting law.
I. GENERAL OVERVIEW OF REPORTING
II. TEXAS STATUTORY REQUIREMENTS
The first child abuse and reporting statute in
Child abuse is a problem of national concern.1
Texas was enacted in 1965, and stated that any
Statistics indicate that past instances of child abuse and
physician “may” report suspected abuse and neglect of
neglect, absent intervention, are predictors that future
a child.27 Those persons who may report was
abuse is likely to occur. 2 During the time period from
broadened in 1969,28 and mandatory language was
September 1, 2001, through August 31, 2001, there
added in 1971.29 The 1971 amendment required
were 30,980 confirmed allegations of child abuse and
mandatory reporting by any person who suspected that
neglect in Texas.3 These allegations ranged from child
a child had been the victim of abuse or neglect, and
abandonment,4 emotional abuse,5 medical neglect,6 and
provided immunity for those persons who reported
neglectful supervision,7 to physical abuse,8 physical
suspected abuse in good faith.30
neglect,9 refusal to accept parental responsibility,10 and
TEX. FAM. CODE ANN. Section 261.101 states:
(a) A person having cause to believe that a child’s
The first model child abuse and neglect laws were
physical or mental health or welfare has been adversely
developed by the Children’s Bureau of the United
affected by abuse or neglect by any person shall
States Department of Health, Education and Welfare in
immediately make a report as provided by this
1963.12 By 1967, all fifty states had some type of
subchapter. (b) If a professional has cause to believe
reporting requirement.13 To encourage individuals to
that a child has been abused or neglected or may be
report, every state has a statute which grants some type
abused or neglected or that a child is a victim of an
of civil and criminal immunity to those who report
offense under Section 21.11, Penal Code, and the
suspected child abuse and neglect in good faith.14
professional has cause to believe that the child has
been abused as defined by Section 261.001, the
The Attorney As Mandatory Reporter Chapter 53
professional shall make a report not later than the 48th was quickly replaced by a utilitarian justification.37
hour after the hour the professional first suspects that Professor John. H. Wigmore intended these
the child has been or may be abused or neglected or is justifications to entail a balancing analysis between the
a victim of an offense under Section 21.11, Penal overall benefit derived from the preservation of
Code. A professional may not delegate to or rely on confidential communications against the overall cost of
another person to make the report. In this subsection, maintaining a privilege to the legal system.38
“professional” means an individual who is licensed or Courts have applied a cost-benefit analysis to the
certified by the state or who is an employee of a attorney-client privilege.39 In Ford Motor Co. v.
facility licensed, certified, or operated by the state and Leggat,40 the Supreme Court of Texas stated, “the
who, in the normal course of official duties or duties purpose of the privilege is to ensure the free flow of
for which a license or certification is required, has information between attorney and client, ultimately
direct contact with children. The term includes serving the broader societal interest of effective
teachers, nurses, doctors, day-care employees, administration of justice.”41 The Court further hails the
employees of a clinic or health care facility that importance of the privilege in Upjohn Co. v. U.S.,42
provides reproductive services, juvenile probation stating that “sound legal advice or advocacy serves
officers, and juvenile detention or correctional officers. public ends and. …such advice or advocacy depends
(c) The requirement to report under this section applies upon the lawyer’s being fully informed by the client.43”
without exception to an individual whose personal Model Rules of Evidence (502) codified the
communications may otherwise be privileged, attorney-client privilege: “a client has a privilege to
including an attorney, a member of the clergy, a refuse to disclose and to prevent any other person from
medical practitioner, a social worker, a mental health disclosing confidential communications made for the
professional, and an employee of a clinic or health care purpose of facilitating the rendition of professional
facility that provides reproductive services. (Emphasis legal services to the client.”44
added). Although most commentators have agreed that the
According to Texas statutory law, attorneys must attorney-client privilege lacks constitutional
report information concerning suspected abuse or protection,45 the Sixth Amendment’s right to effective
neglect of a child, even if that knowledge was obtained assistance of counsel46 has been interpreted to require
through privileged communications, but may not confidential consultation with an attorney.47 However,
testify concerning that same information in an abuse or this confidentiality is limited to criminal proceedings
neglect proceeding.31 after the formal accusation of a suspect.48 The
Supreme Court has ruled that the Fifth Amendment
III. MANDATORY REPORTING LAWS protection from self-incrimination 49does not prevent
Mandatory reporting laws at least partially the state from compelling an attorney to divulge
abrogate the attorney-client privilege. The Texas law, confidential client information.50 In Fisher v. United
indeed, expressly mandates reporting child abuse by States,51 the Court reasoned that requiring an attorney
attorneys. 32 The reporting statutes create a clear to reveal information that the client voluntarily gave to
disclosure requirement where an attorney obtains the attorney did not compel the accused in any way.52
information that otherwise would have been protected Therefore, the Constitution offers little protection for
by the ethical confidentiality principle.33 The the attorney-client privilege, except in the case of
command that a lawyer keep information confidential certain criminal defendants.53
as part of the rules of professional responsibility cannot
supersede an otherwise mandatory legal duty to V. RULES OF PROFESSIONAL CONDUCT
report.34 This conflict lies at the heart of the dilemma The Rules of Professional Conduct apply the
posed by the hypothetical situations presented above. confidentiality rules more broadly than the attorney-
Mosteller argues that … “although the drafters of the client privilege. The requirement to maintain
mandatory child abuse statutes may not have intended confidentiality is not limited to in-court disclosure.
to reshape the attorney-client privilege, the mere The Rules provide that information gained by an
existence of these statutes, which raise questions attorney in the course of representation must be kept
regarding the continued protection of the privilege, has confidential and may not be revealed in any forum.54
an important impact upon how the ethics rules that Three model codes have been issued by the
might otherwise preclude disclosure are applied.”35 American Bar Association: the Canons of Professional
Ethics in 1908, the Model Code in 1969, and the
IV. ATTORNEY-CLIENT PRIVILEGE Model Rules in 1983.55 Texas adopted the State Bar
Evidentiary privileges, such as the attorney-client Rules (Texas Disciplinary Rules of Professional
privilege, were initially justified as a means of Conduct), effective January 1, 1990.56 Rule 1.05
preserving the honor of those entrusted with relates to confidentiality and defines under what
confidential communications.36 The honor justification
The Attorney As Mandatory Reporter Chapter 53
circumstances an attorney may reveal both privileged Polygraph Examiners Act, unless the inconsistent
and unprivileged client information.57 statute explicitly recognizes and excepts itself from
The comments to these rules support both section 261.101.”69 Using this logic, the reporting
utilitarian and humanistic justification for the requirements of Sec. 262.101 would prevail over the
significance of confidential communication between Texas Disciplinary Rules of Professional Conduct.
attorney and client. Comment 1 to Rule 1.05 states:
“The ethical obligation of the lawyer to protect the VII. CONCLUSION
confidential information of the client not only In examining hypothetical 1, attorney X would not
facilitates the proper representation of the client but be a “professional” as defined in TEX. FAM. CODE
also encourages potential clients to seek early legal Sec. 261.101(b), as he was not appointed as an attorney
assistance.”58 ad litem for a child, and is not a professional who has
direct contact with children in the normal course of his
VI. TEXAS AUTHORITY official duties. He would, therefore, fall under sec.
An attorney’s duty to report suspected child abuse 261.101(a) as a “person.” The next issue would then
and/or neglect has not been directly addressed by either be whether attorney X had cause to believe that the
Texas case law or an Attorney General opinion. The child’s physical or mental health or welfare had been
only direct reference to an attorney’s duty to report adversely affected by abuse or neglect. In reading
under Tex. Fam. Code Sec. 261.101 is found in hypothetical 1, an attorney’s initial reaction might be to
footnote references in In re Alfred Khulmann and apply “some discretion” in making this determination.
T.D.P.R.S. vs Benson.59 In both cases, the court The family sought counseling, and no other instances
indicates that “an attorney’s failure to report suspected of abuse or neglect are alleged. Although not
abuse or neglect of a child constitutes a violation of the specifically described, the injuries sustained by the
Texas reporting statute”60 and that the “only privileged child required medical treatment. It is not clear if the
communications recognized by the Family Code circumstances surrounding the injury were reported to
provisions governing child abuse are confidential hospital officials. In addition, the incident is somewhat
communications between attorney and client.”61 This removed in time, and the injury to the child was
is further clarified by the comments found in Sampson “inadvertent.” One might conclude then, as the
and Tindall’s Annotated Family Code, which state, information regarding the exact nature of the injury
“The only privileged communications recognized by was incomplete, and the injury could be considered
this chapter are those between an attorney and client. “dated,” that attorney X could use his “good judgment”
This testimonial privilege protects confidential in determining whether to report the injury to the child
communications; it is not a blanket privilege that as required by Sec. 261.101. This analysis would be
immunizes an attorney from responsibility to report incorrect pursuant to Attorney General Opinion DM-
injury to a child caused by abuse or neglect.”62 458. This opinion specifically indicates that even
Tex. Fam. Code Sec. 261.101 has been held as though the information received by the reporter may be
creating an exception to the clergy-communications “incomplete or dated,” if the reporter suspects that a
privilege,63 as well as the physician-patient privilege.64 child has been abused, the reporting requirement
The Attorney General has addressed Sec. 261.101 in mandates that a report be made immediately. There is
regard to the duty imposed on other professionals by its no language in Sec. 261.101(a) “indicating that
reporting requirement stating that persons required to reporting suspected child abuse is discretionary or
report under Sec. 261.101 may not exercise discretion establishing an exception where the suspicion is
in determining whether to report suspected abuse or premised on information that is incomplete or dated.”70
neglect.65 In its evaluation of Sec. 261.101, the The final issue to address in hypothetical 1 is the
Attorney General has determined that “the reporting existence of the attorney-client privilege. Clearly, the
requirement expressly applies without exception to any information received by attorney X was given during
individual whose personal communications normally the course of privileged communications. As stated
are privileged”. (emphasis added)66 In addition, a previously, Sec. 261.101 has been held to prevail over
person who suspects child abuse and neglect shall any inconsistent statute, unless it is specifically
report, immediately.67 “The term “shall” ordinarily excepted therefrom. In addition, Sec. 261.101(c) is
signals a mandate, and the term “immediately” clear that the requirement to report applies to any
underscores the mandate with a sense of urgency.”68 individual whose communications might otherwise be
In examining the conflict between Sec. 19A of the privileged, including an attorney. The duty of attorney
Polygraph Examiners Act, and the reporting X to report prevails over the attorney-client privilege
requirement of Sec. 262.101, the Attorney General as well as the Texas Rules of Professional Conduct.
states, “We believe that the legislature intended Attorney X may not testify to privileged information in
Sec.261.101 of the Family Code to prevail over any any proceeding regarding the abuse or neglect of a
inconsistent statute, which includes section 19A of the child, as set forth in Sec. 261.202. It is interesting to
The Attorney As Mandatory Reporter Chapter 53
note that the information provided by an attorney to information obtained is incomplete or dated. If the
Child Protective Services or law enforcement information is obtained while the attorney is
regarding suspected abuse or neglect, if obtained representing a child, or if the attorney in the normal
during the course of privileged communications, must course of official duties has direct contact with
be substantiated or corroborated by additional children, the attorney shall make a report no later that
information received during the course of the the 48th hour after the attorney first suspected that a
investigation for any legal proceeding to be initiated. child might be the victim of abuse or neglect. As a
A concern to attorney X might be his exposure to professional, the attorney may not delegate the
legal action by his client should attorney X report the responsibility to report or rely on another person to do
alleged abuse described in hypothetical 1. Section so. In addition, the duty to report prevails over the
261.106 states that a person who reports suspected attorney-client privilege and the Texas Rules of
abuse or neglect of a child in good faith is immune Professional Conduct. An attorney is immune from
from prosecution. This will not, of course, assure that liability if the report of suspected child abuse or
attorney X will not be the subject of legal proceedings, neglect was done in good faith, and finally, an attorney
but that as long as his actions are based on a good faith may not be required to testify against his or her client
belief, he will have a legal defense.71 In addition, in an abuse or neglect proceeding.
attorney X would be able to recover reasonable
attorney’s fees and other expenses incurred in any 1
See Robert P. Mosteller, Child Abuse Reporting Laws and
claim filed against him for his good faith report of Attorney Client Confidences: The Reality and Specter of
suspected child abuse.72 In fact, failure to report Lawyer as Informant, 42 Duke L.J. 203, 203 (1992).
suspected child abuse is an offense punishable as a 2
See Allison Beyea, Competing Liabilities: Responding to
class B misdemeanor.73 Evidence of Child Abuse That Surfaces During the Attorney-
Attorney X in hypothetical 2 would again be Client Relationship, 51 Me. L. Rev. 269, 272-275 (1999)
required to report as a “person” under sec. 261.101(a) 3
See Texas Dept. Protective and Regulatory Services
as opposed to a “professional” under sec. 261.102. Statistics, Fiscal Year 2002.
Hypothetical 2 does not raise the issue of 4
confidentiality. The information disclosed does not, on See id. (488 confirmed investigations reported).
its face, indicate that Mrs. Smith has perpetrated any 5
See id. (1,275 confirmed investigations reported).
abuse or neglect against her children. Substantial 6
See id. (2,251 confirmed investigations reported).
information is provided by Mrs. Smith, however, that
her husband has physically, and perhaps sexually, See id. (24,229 confirmed investigations reported)
abused their daughters. At this point, attorney X 8
See id. (12,843 confirmed investigations reported).
should advise his client of his duty to report the 9
suspected abuse or neglect of Mrs. Smith’s daughters. See id. (6,767 confirmed investigations reported)
Attorney X should also advise Mrs. Smith of her duty 10
See id. (818 confirmed investigations reported)
to report the suspected abuse or neglect of her 11
See id. (7,317 confirmed investigations reported).
daughters pursuant to 261.101. The authors would
advise attorney X not to rely on Mrs. Smith to report See Shawn P. Bailey, How Secrets Are Kept: Viewing the
the abuse and neglect, but to report the suspected child Current Clergy-Penitent Privilege Through a Comparison
abuse himself. with the Attorney-Client Privilege, 2002 B.Y.U.L.Rev. 489,
Changing the fact situation slightly, if Mrs. Smith
had sought attorney X’s services after charges of abuse Id. at 492
and neglect had been reported to authorities, and Mr. 14
See Code of Ala. Sec. 26-14-9 (2001)(Alabama); Alaska
Smith was facing criminal and/or civil charges as a Stat. Sec. 47.17.050 (1999)(Alaska); A.R.S. Sec. 8-805
result thereof, common sense would indicate that the (2001)(Arizona); A.C.A. Sec. 12-12-517 (2001)(Arkansas);
reporting requirement of attorney X would be Cal. Pen. Code Sec. 11172 (2001)(California); C.R.S. 19-3-
alleviated. (This would be assuming that the 309 (2001)(Colorado); Conn. Gen. Stat., Sec. 17a-101e
information given by Mrs. Smith was essentially the (2001)(Connecticut); 16 Del.C. Sec. 908 (2001)(Delaware);
same as that which had been previously reported and Fla. Stat. Sec. 39.203 (2002)(Florida); O.C.G.A. Sec. 19-7-5
investigated). The authors cannot, however, find any (2002)(Georgia); H.R.S. Sec. 350-3 (Michie 2002)(Hawaii);
Idaho Code Sec. 16-1620 (2002)(Idaho); 325 I.L.C.S. 5/9
legal or statutory authority to support this conclusion.
(2002)(Illinois); Burns Ind. Code Ann. Sec. 31-33-6-1
Hopefully, this article will provide attorneys with (2002)(Indiana); Iowa Code Sec. 232.73 (2002)(Iowa);
some assistance in determining their duty to report K.S.A. Sec. 38-1526 (2001)(Kansas); K.R.S. Sec. 620.050
suspected abuse and neglect under TEX. FAM. CODE (2002)(Kentucky); La. Ch. C. Art. 611 (2002)(Louisiana);
Sec. 261.101. If an attorney has a good faith belief that 22 M.R.S. Sec. 4014 (2001)(Maine); Md. FAMILY LAW
child abuse or neglect has occurred, the attorney has a Code Ann. Sec. 5-708 (2002)(Maryland); ALM GL Ch. 119,
duty to report that belief immediately regardless if the Sec. 51A (2002)(Massachusetts); MCLS Sec. 722.625
The Attorney As Mandatory Reporter Chapter 53
(2002)(Michigan); Minn. Stat. Sec. 626.556 (2001) (South Carolina); S.D. Codified Laws Sec. 26-8A-3
(2001)(Minnesota); Miss. Code Ann. Sec. 43-21-355 (2002) (South Dakota); Tenn. Code Ann. Sec. 37-1-403
(2001)(Mississippi); Sec. 210.135 R.S. Mo. (2002) (Tennessee); TEX. FAM. CODE ANN., Sec. 261.101
(2001)(Missouri); Mont. Code Anno. Sec. 41-3-203 (2001) (Texas); Utah Code Ann. Sec. 62A-4a-403 (2002)
(2002)(Montana); R.R.S. Neb. Sec. 28-716 (Utah); 33 V.S.A. Sec. 4913 (2002) (Vermont); Va. Code
(2002)(Nebraska); NRS Sec. 432B.220 (2002)(Nevada); 12 Ann. Sec. 63.2-1509, 10 (2002) (Virginia); Rev. Code Wash.
RSA 169-C:31 (2002)(New Hampshire); N.J. Stat. Sec. (9:6- (ARCW) Sec. 26.44.030 (2002) (Washington); W.Va. Code
8.13 (2002)(New Jersey); N.M. Stat. Ann. Sec. 32A-4-5 Sec. 49-6A-2 (2002) (West Virginia); Wis. Stat. Sec.
(2002)(New Mexico); NY CLS Soc. Serv. Sec. 419 48.981-3 (2002) (Wisconsin); Wyo. Stat. Sec. 14-3-205
(2002)(New York); N.C. Gen. Stat. Sec. 7B-309 (2002) (Wyoming).
(2001)(North Carolina); N.D. Cent. Code, Sec. 50-25.1-09 16
See O.CG.A. Sec. 19-7-5 (2002); H.R.S. Secs. 350-1.1;
(2002)(North Dakota); ORC Ann. 2151.421 (Anderson
350-1.3 (Michie 2002); 325 I.L.C.S. 5/4 (2002); Iowa Code
2002)(Ohio); 10 Okl. St. Sec. 7105 (2002)(Oklahoma); ORS
Sec. 232.69 (2002); K.S.A. Sec. 38-1522 (2001); La. Ch. C.
Sec. 419B.025 (2001)(Oregon); 23 Pa. C.S. Sec. 6318
Arts. 603, 609 (2002); 22 M.R.S. Sec. 4011-A (2001);
(2002)(Pennsylvania); R.I. Gen. Laws Sec. 40-11-4
MCLS Sec. 722.623 (2002); Minn. Stat. Sec. 626.556
(2002)(Rhode Island); S.C. Code Ann. Sec. 20-7-540
(2001); Sec. 210.115 R.S. Mo. (2001); Mont. Code Anno.,
(2001(South Carolina); S.D. Codified Laws Sec. 26-8A-14
Sec. 41-3-201 (2001); NY CLS Soc Serv Secs. 413, 414
(2002)(South Dakota); Tenn. Code Ann. Sec. 37-1-613
(2002); N.D. Cent. Code Sec. 50-25.1-03 (2001); 23 Pa.
(2002)(Tennessee); TEX. FAM. CODE ANN., Sec. 261.106
Cc.S. Secs. 6311, 6312 (2002); S.C. Code Ann. Sec. 20-7-
(2001)(Texas); Utah Code Ann. Sec 62A-4a-410
510 (2001); S.D. Codified Laws Sec. 26-8A-3 (2002); Tenn.
(2002)(Utah); 33 V.S.A. Sec. 4913 (2002)(Vermont); Va.
Code Ann. Sec. 37-1-403 (2002); 33 V.S.A. Sec. 4913
Code Ann. Sec. 63.2-1512 (2002)(Virginia); Rev. Code
(2002); Va. Code Ann. Secs. 63.2-1509, 1510 (2002); Rev.
Wash. (ARCW) Sec. 26.44.060 (2002)(Washington); W.Va.
Code Wash. (ARCW) Sec. 26.44.030 (2002); W. Va. Code
Code Sec. 49-6A-6 (2002)(West Virginia); Wis. Stat. Sec.
Sec. 49.6A-2 (2002); Wis. Stat. Sec. 48.981-3 (2002).
48.891 (2002)(Wisconsin); Wyo. Stat. Sec. 14-3-209
(2002)(Wyoming See ALM GL Ch. 199, Sec. 51A (2002)
See Burns Ind. Code Ann. Sec. 31-33-5-1 (2002); Utah
15 Code Ann. Sec. 62A-4a-403 (2002); Wyo. Stat. Sec. 14-3-
See Code of Ala. Sec. 26-14-3 (2001)(Alabama); Alaska
Stat. Sec. 47.17.020 (1999)(Alaska); A.R.S. Sec. 13-3620
(2001)(Arizona); A.C.A. Sec. 12-12-507(Arkansas); Cal. See 16 Del. C. Sec. 903 (2001); Fla. Stat. Sec. 39.201
Pen. Code Sec. 11166 (2001)(California); C.R.S. 19-3-304 (2002); Idaho Code Sec. 16-1619 (2002); KRS Sec. 620.030
(2001)(Colorado); Conn. Gen. Stat., Sec. 17a-101a (2002); R.R.S. Neb. Sec. 28-711 (2002); 12 R.S.A. 169-C:29
(2001)(Connecticut); 16 Del.C. Sec. 903 (2001)(Delaware); (2002); N.J. Stat. Sec. 9:6-8:10 (2002); N.M. Stat. Ann. Sec.
Fla. Stat. Sec. 39.201 (2002)(Florida); O.C.G.A. Sec. 19-7-5 32A-4-3 (2002); N.C. Gen. Stat. Sec. 7B-301 (2001); 10 Ok.
(2002)(Georgia); H.R.S. Sec. 350-1.1 (Michie Stat. Sec. 7103 (2002); R.I. Gen. Laws Sec. 40-11-3, 6 (2001
2002)(Hawaii); Idaho Code Sec. 16-1619 (2002)(Idaho); 325 20
See Wis. Stat. Sec. 48.981-3 (2002)
I.L.C.S. 5/9 (2002)(Illinois); Burns Ind. Code Ann. Sec. 31-
33-5-1 (2002)(Indiana); Iowa Code Sec. 232.69 See 16 Del. C. Sec. 903 (2001); Fla. Stat. Sec. 39.201
(2002)(Iowa); K.S.A. Sec. 38-1522 (2001)(Kansas); K.R.S. (2002); Idaho Code Sec. 16-1619 (2002); Burns Ind. Code
Sec. 620.030 (2002)(Kentucky); La. Ch. C. Art. 609 Ann. Sec. 31-33-5-1 (2002); KRS Sec. 620.030 (2002);
(2002)(Louisiana); 22 M.R.S. Sec. 4011-a (2001)(Maine); R.R.S. Neb. Sec. 28-711 (2002); 12 R.S.A. 169-C:29 (2002);
Md. FAMILY LAW Code Ann. Sec. 5-705 N.J. Stat. Sec. 9:608:10 (2002); N.M. Stat. Ann. Sec. 32A-4-
(2002)(Maryland); ALM GL Ch. 119, Sec. 51A 3 (2002); N.C. Gen. Stat. Sec. 7B-301 (2001); 10 Ok. Stat.
(2002)(Massachusetts); MCLS Sec. 722.623 Sec. 7103 (2002); R.I. Gen. Laws Sec. 40-11-3 (2001); Utah
(2002)(Michigan); Minn. Stat. Sec. 626.556 Code Ann. Sec. 62A-4a-403 (2002); Wyo. Stat. Sec. 14-3-
(2001)(Minnesota); Miss. Code Ann. Sec. 43-21-353 205 (2002)
(2001)(Mississippi); Sec. 210.115 R.S. Mo. 22
(2001)(Missouri); Mont. Code Anno. Sec. 41-3-201 See 16 Del. C. Sec. 909 (2001); Fla. Stat. Sec. 39.204
(2002)(Montana); R.R.S. Neb. Sec. 28-711 (2002); R.R.S. Neb. Secs. 28-707, 714 (2002); 12 R.S.A.
(2002)(Nebraska); NRS Sec. 432B.160 (2002)(Nevada); 12 169-C:32 (2002); N.M. Stat. Ann. Sec. 32A-4-5 (2002);
RSA 169-C:29 (2002)(New Hampsire); N.J. Stat. Sec. (9:6- N.C. Gen. Stat. Sec. 7B-310 (2001); 10 Ok. Stat. Sec. 7103
8.10 (2002)(New Jersey); N.M. Stat. Ann. Sec. 32A-4-3 (2002); R.I. Gen. Laws Sec. 40-11-11 (2001); Wyo. Stat.
(2002)(New Mexico); NY CLS Soc. Serv. Sec. 413 Sec. 14-3-210 (2002)
(2002)(New Yori); N.C. Gen. Stat. Sec. 7B-301 23
See Md. FAMILY LAW Code Ann. Sec. 5-705 (2001);
(2001)(North Carolina); N.D. Cent. Code, Sec. 50-25.1-03 Miss. Code Ann. Sec. 43-21-353 (2001); NRS Sec.
(2002)(North Dakota); ORC Ann. 2151.421 (Anderson 432B.220 (2001); ORC Ann. 2151.421 (2002); O.R.S. Secs.
2002)(Ohio); 10 Okl. St. Sec. 7103 (2002)(Oklahoma); ORS 419B.005,010 (2001); TEX. FAM. CODE ANN. Sec.
Sec. 419B.005, 010 (2001) (Oregon); 23 Pa. C.S. Sec. 6311, 261.101 (2001).
12 (2002) (Pennsylvania); R.I. Gen. Laws Sec. 40-11-3
(2002) (Rhode Island); S.C. Code Ann. Sec. 20-7-510
The Attorney As Mandatory Reporter Chapter 53
See Md. FAMILY LAW Code Ann. Sec. 5-705 (2001); See MODEL CODE OF PROF’L CONDUCT (1983); Bruce A.
NRS Sec. 432B.220 (2001); O.R.S. Sec. 419B.010 (2001). Boyer, Ethical Issues in the Representation of Parents in
25 Child Welfare Cases, 64 Fordham L. Rev. 1621.
See ORC Ann. 2151.421 (2002).
26 See Canons of Prof’l Ethics (1908)(amended until 1969);
See Miss. Code Ann. Sec. 43-21-353 (2001); TEX. FAM.
MODEL CODE OF PROF’L RESPONSIBILITY (1969); MODEL
CODE ANN., Sec. 261.101 (2001).
CODE OF PROF’L CONDUCT (1983).
See Texas v. Harrod, 81 S.W.3d 904, 907 (Tex. App. – 56
TEX. DISCIPLINARY R. PROF’L CONDUCT reprinted in
Dallas 2002, no writ).
TEX. GOV’T CODE ANN., tit. 2, subtit. G. app. A (Vernon
Id. at 908. Supp. 1997) (TEX. STATE BAR R. art. X, § 9).
Id. Rule 1.05 states in full:
30 (a) “Confidential information includes both
Id. “privileged information” and “unprivileged client
See TEX.FAM.CODE ANN., Sec. 261.202 (2001). information.” “Privileged information” refers to the
32 information of a client protected by the lawyer-client
See TEX.FAM.CODE ANN., Sec. 261.101 (2001) privilege of Rule 503 of the Texas Rules of Evidence or of
See Mosteller, supra, at 239. Rule 503 of the Texas Rules of Criminal Evidence or by the
34 principles of attorney client privilege governed by Rule501
Id. at 240. of the Federal rules of Evidence for United States Courts and
Id. at 244. Magistrates. “Unprivileged client information” means all
information relating to a client or furnished by the client,
See Bailey, supra, at 492. other than privileged information, acquired by the lawyer
Id. at 500. during the course of or by reason of the representation of the
Id. (b) Except as permitted by paragraphs (c) and (d), or as
904 S.W.2d 643 (Tex. 1995) required by paragraphs (e) and (f), a lawyer shall not
Id. (1) Reveal confidential information of a client or
Id. a former client to:
(i) a person that the client has instructed is
449 U.S. 383 (1981) not to receive the information; or
Id. (ii) anyone else, other than the client, the
client’s representatives, or the members, associates, or
MODEL CODE OF PROF’L CONDUCT (1983). employees of the lawyer’s law firm.
Id. at 233-24. (2) Use confidential information of a client to the
disadvantage of the client unless the client consents after
See U.S. Const. amend. VI, which states in part: “in all consultation.
criminal prosecutions, the accused shall…have the (3) Use confidential information of a former
Assistance of Counsel for his defense.” client to the disadvantage of the former client after the
See United States v. Henry, 447 U.S. 264, 295 (1980) representation is concluded unless the former client consents
(Rehnquist, J., dissenting) after consultation or the confidential information has become
See Moran v. Burbine, 475 U.S. 412, 432 (1986) (stating (4) Use privileged information of a client for the
that the right to effective assistance of counsel only applies advantage of the lawyer or of a third person, unless the client
after the initiation of adversarial proceedings); Kirby V. consents after consultation;
Illinois, 406 U.S. 682, 688-89 (1972) (stating that the right (c) A lawyer may reveal confidential information:
to effective assistance of counsel applies only when judicial (1) When the lawyer has been expressly
proceeding have been initiated by “formal charge, authorized to do so in order to carry out the representation.
preliminary hearing, indictment information, or (2) When the client consents after consultation.
arraignment.”) (3) To the client, the client’s representatives, or
49 the members, associates, and employees of the lawyer’s
The Fifth Amendment states in part that: “[no person]
firm, except when otherwise instructed by the client.
shall be compelled in any criminal case to be a witness
(4) When the lawyer has reason to believe it is
against himself.” U.S. Const. amend. V.
necessary to do so in order to comply with a court order, a
425 U.S. 391 (1976). Texas Disciplinary Rules of Professional Conduct, or other
Fisher at 402.
(5) To the extent reasonably necessary to enforce
Id. at 397. a claim or establish a defense on behalf of the lawyer in a
53 controversy between the lawyer and the client.
See Moran and Kirby, supra.
The Attorney As Mandatory Reporter Chapter 53
(6) To establish a defense to a criminal charge, 64
See Alvarez v. Anesthesiology Assoc., 967 S.W. 2d 871,
civil claim or disciplinary complaint against the lawyer or
878 (Tex. App.—Corpus Christi 1998, remanded in part on
the lawyer’s associates based upon conduct involving the
client or the representation of the client.
(7) When the lawyer has reason to believe it is See Op. Tex. Atty. Gen. No. DM-458 (1997) (discretion
necessary to do so in order to prevent the client from rests with those authorized to file charges, not with those
committing a criminal or fraudulent act. who suspect abuse or neglect).
(8) To the extent revelation reasonably appears 66
necessary to rectify the consequences of a client’s criminal See id; see also Op. Tex. Atty. Gen. No. JC 0538 (2002);
or fraudulent act in the commission of which the lawyer’s Op. Tex. Atty. Gen. No. JC 0070 (1999).
services had been used. See Op. Tex. Atty. Gen. No. DM-458 (1997). . The term
(d) A lawyer also may reveal unprivileged client “immediately” as applied in 261.101 is not
information: unconstitutionally vague. See Rodriguez v. State, 47 S.W.3d
(1) When impliedly authorized to do so in order 86, 88-89 (Tex. App.—[14th Dist.] Houston 2001, writ
to carry out the representation. ref’d).
(2) When the lawyer has reason to believe it is 68
necessary to do so in order to: See Op. Tex. Atty. Gen. No. DM-458 (1997).
(i) carry out the representation effectively; 69
See Op. Tex. Atty. Gen. No. JC 0070 (1999).
(ii) defend the lawyer or the lawyer’s 70
employees or associates against a claim of wrongful See Op. Tex. Atty. Gen. No. DM-458 (1997).
Absolute immunity for physician reporters has been
(iii) respond to allegations in any proceeding advocated due to the “discouraging “ effect the fear of
concerning the lawyer’s representation of the client; or litigation can have on a physician’s decision to report
(iv) prove the services rendered to a client, suspected child abuse. See Ellen Wright Clayton,
or the reasonable value thereof, or both, in an action against CHILDREN’S HEALTH SYMPOSIUM: To Protect Children
another person or organization responsible for the payment From Abuse and Neglect, Protect Physician Reporters, 1
of the fee for services rendered to the client. HOUS.J. HEALTH L. & POL’Y 133 (2001).
(e) When a lawyer has confidential information clearly 72
establishing that a client is likely to commit a criminal or See TEX. FAM. CODE Sec. 261.108 (2001).
fraudulent act that is likely to result in death or substantial 73
See TEX. FAM. CODE Sec. 261.109 (2001).
bodily harm to a person, the lawyer shall reveal confidential
information to the extent revelation reasonably appears
necessary to prevent the client from committing the criminal
or fraudulent act.
(f) A lawyer shall reveal confidential information
when required to do so by Rule 3.03(a)(2), 3.03(b), or by
TEX. DISCIPLINARY R. PROF’L CONDUCT 1.05 & cmt. 1.
See In Re Alfred Kuhlman, Jr., 1998 Tex. App. LEXIS
7140 (Tex. App. – Austin 1998); Texas Department of
Human Services v. Benson, 893 S.W.2d 236 (Tex. App --
Austin 1995, writ ref’d).
See In Re Alfred Kuhlman, Jr., 1998 Tex. App. LEXIS
7140,1747 (Tex. App. – Austin 1998).
See Texas Department of Human Services v. Benson, 893
S.W.2d 236 (Tex. App -- Austin 1995, writ ref’d). An
Attorney General opinion does directly indicate that in an
abuse or neglect proceeding, “evidence may not be excluded
on the ground of privileged communication except in the
case of communications between attorney and client.” See
Op. Tex. Atty. Gen. No. JM-342 (1985).
JOHN J. SAMPSON, HARRY L. TINDALL & ROBERT
O. DAWSON, TEXAS FAMILY CODE ANNOTATED
Subchapter C, Sec. 261.201 (11th ed. 2001).
See Carol Bordman v. The State of Texas, 56 S.W.3d 63
(Tex. App.—[14th Dist.] Houston 2001, no writ).