THE ATTORNEY AS MANDATORY REPORTER ... - TexasBarCLE

Document Sample
THE ATTORNEY AS MANDATORY REPORTER ... - TexasBarCLE Powered By Docstoc
					 THE ATTORNEY AS MANDATORY REPORTER




       HON. CAMILE GLASSOCK DUBOSE
              38th Judicial District
               Courthouse, Box 1
              Uvalde, Texas 78801

                 CATHY MORRIS
 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
                 San Antonio

                    CHAPTER 53
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




                                                                                    i
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.
                                                                 communications.26
I.   GENERAL OVERVIEW OF REPORTING
                                                                 II. TEXAS STATUTORY REQUIREMENTS
     LAWS
                                                                      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:
sexual abuse.11
                                                                 (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
                                                             1
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
                                                             2
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
                                                             3
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
                                                                7
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
                                                                12
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,
                                                                492 (220).
      Changing the fact situation slightly, if Mrs. Smith
                                                                13
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
                                                            4
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
                                                                   17
(2002)(Wyoming                                                          See ALM GL Ch. 199, Sec. 51A (2002)
                                                                   18
                                                                     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
                                                                   205 (2002).
Stat. Sec. 47.17.020 (1999)(Alaska); A.R.S. Sec. 13-3620
                                                                   19
(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-
                                                                   21
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
                                                               5
The Attorney As Mandatory Reporter                                                                                       Chapter 53


24                                                                   54
 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).
                                                                     55
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).
27
  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
28
     Id. at 908.                                                     Supp. 1997) (TEX. STATE BAR R. art. X, § 9).
29                                                                   57
     Id.                                                                Rule 1.05 states in full:
30                                                                             (a) “Confidential information includes both
     Id.                                                             “privileged information” and “unprivileged client
31
     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
33
     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
35
     Id. at 244.                                                     Magistrates. “Unprivileged client information” means all
36
                                                                     information relating to a client or furnished by the client,
     See Bailey, supra, at 492.                                      other than privileged information, acquired by the lawyer
37
     Id. at 500.                                                     during the course of or by reason of the representation of the
38
                                                                     client.
     Id.                                                                   (b) Except as permitted by paragraphs (c) and (d), or as
39
     904 S.W.2d 643 (Tex. 1995)                                      required by paragraphs (e) and (f), a lawyer shall not
40
                                                                     knowingly:
     Id.                                                                         (1) Reveal confidential information of a client or
41
     Id.                                                             a former client to:
                                                                                       (i) a person that the client has instructed is
42
     449 U.S. 383 (1981)                                             not to receive the information; or
43
     Id.                                                                               (ii) anyone else, other than the client, the
                                                                     client’s representatives, or the members, associates, or
44
     MODEL CODE OF PROF’L CONDUCT (1983).                            employees of the lawyer’s law firm.
45
     Id. at 233-24.                                                              (2) Use confidential information of a client to the
                                                                     disadvantage of the client unless the client consents after
46
   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
47
  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
                                                                     generally known.
48
   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
50
     425 U.S. 391 (1976).                                            Texas Disciplinary Rules of Professional Conduct, or other
51                                                                   law.
     Fisher at 402.
                                                                                 (5) To the extent reasonably necessary to enforce
52
     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.

                                                                 6
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
                                                                       other grounds).
client or the representation of the client.
                                                                       65
            (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).
                                                                       67
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).
conduct;                                                               71
                                                                           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
Rule 4.01(b).
58
     TEX. DISCIPLINARY R. PROF’L CONDUCT 1.05 & cmt. 1.
59
  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).
60
  See In Re Alfred Kuhlman, Jr., 1998 Tex. App. LEXIS
7140,1747 (Tex. App. – Austin 1998).
61
  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).
62
  JOHN J. SAMPSON, HARRY L. TINDALL & ROBERT
O. DAWSON, TEXAS FAMILY CODE ANNOTATED
Subchapter C, Sec. 261.201 (11th ed. 2001).
63
  See Carol Bordman v. The State of Texas, 56 S.W.3d 63
(Tex. App.—[14th Dist.] Houston 2001, no writ).


                                                                   7

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:2
posted:4/8/2013
language:Unknown
pages:15