Are Lawyers Different? Professional Resistance, Mandated Child Abuse Reporting and the Duty of Confidentiality

Chrysanthi Leon*

Overview: Anxiety about child abuse combined with a general trend towards placing the responsibility for crime control in the hands of the public has led to a variety of changes in the laws surrounding child abuse and sexual violence.  This essay considers one of these policy innovations — mandatory reporting laws — in light of the professional duty of confidentiality to which attorneys must adhere, or risk censure.1  California did not pass an explicit exception to allow attorneys to violate confidentiality until 2004, while other professions such as medicine, the clergy and social work surrendered to a mandated reporting system much earlier.

Are lawyers different?  After considering the arguments for and against maintaining attorneys’ discretion to violate confidentiality, as well as the efficacy of mandated reporting, I argue that such discretion should be preserved and perhaps returned to other professions.

Mandatory Reporting Laws and Their Context

    Though social welfare movements had highlighted the plight of children during earlier epochs in U.S. history, child abuse became especially visible as an issue requiring public attention and official response in the 1960s and 70s.2  In addition to insisting on better responses from law enforcement, the awareness of child abuse as a social problem led to a push for private citizens to take responsibility for recognizing and addressing violence against children.3  The first generation of reporting statutes focused on physicians; these were later broadened to include other specified professionals likely to have contact with children.  Some statutes combined this approach with a catchall category of reporters that could include anyone (Younes, 1987).  In 1974, Congress enacted the Child Abuse and Prevention Act4 to provide federal funds for states that required reporting by certain professionals.  Today, in addition to prescribing criminal penalties for failure to report, mandatory reporting laws typically provide immunity against civil suits for those who do report.

    As Robert Mosteller writes, the model legislation which accompanied the Act and the statutes enacted by the various states generally did not express an intention to fully include attorneys in the reporting requirements, nor to explicitly over-ride the evidentiary rules and confidentiality guidelines that protect the relationship between attorneys and their clients (Mosteller (1992) 214).  These laws have however, created confusion as to the ultimate allegiances and responsibilities of attorneys.

    Aside from confusion over the duty to report, the general trend towards aggressive responses to child abuse has not been universally supported.  Conservative think tanks, in particular, voiced the concern that increased intervention of social services agencies into situations of suspected abuse would lead to over-reporting and would drain the resources of social service agencies.  They further argued that investigations into allegations of child abuse could invade “family privacy,” which they argued should take primacy over consideration of the child as an independent entity (Council 1992).  Criticism has also come from experts in the field of psychological theory and treatment.  Douglas Besharov, an authority on the treatment of child abuse, has been a leading critic of what he considers overbroad and misguided legislation, arguing that these laws wreak havoc by forcing professionals to file unsubstantiated reports in order to avoid legal consequences (Besharov 1985).

    Despite these criticisms, reporting policies have become entrenched in our welfare system.  Child abuse policies continue to be debated in heated terms by both conservatives and progressives, and the debate has been expanded to include the way child sexual abuse, in particular, should be handled.

    Beginning in the 1980s, public concern over the prevalence of sexual abuse of children was widespread, with some asserting that it was very common and others claiming that the threat was exaggerated.  Adult victims of child sexual abuse came forward with allegations of abuse uncovered through regression therapy.  There were numerous revelations of sexual abuse and cover-ups by priests, ministers and rabbis and by Boy Scout leaders, not to mention the McMartin preschool hysteria.  Several successful civil suits were brought against religious groups that tried to cover up sexual abuse; damages paid by the Catholic Church to victims of sexual abuse are estimated to exceed $1 billion.  Accusations of child pornography rings and Satanist practices also popped up.  Most, if not all, of these accusations were disproved (Wright 1994).  Criticism of recovered memory therapy also grew, and those therapists who had supported it lost credibility, but legal and social changes prompted by the moral panic remain largely in place.

    Though some of the changes instituted in order to facilitate the prosecution of crimes against children have been rolled back (such as some of the liberalizations of statutes of limitation enacted in some states), many persist.  Evidentiary rules in child abuse cases continue to stretch traditional practice, allowing more leeway for expert testimony, hearsay exceptions, and provisions for victim testimony through technology such as video cameras (Poage 1991; Diab 2004).

    In addition to changes in legal procedure, this time period also saw a new innovation in law enforcement: community notification laws.  After the widely publicized murder of seven-year-old Megan Kanka in 1994 by a convicted sex offender, Congress passed legislation that required states to release information concerning registered sex offenders (Pub. L. 104-236, 110 Stat.3093).  The novel part of this policy is the release of information about convicted sex offenders to the public; previously, registries were for law enforcement use only.

    Community notification has some parallels to mandated reporting — both are motivated by fear of crime and are premised on the responsibility of community members to act on information made available to them.  As Jonathan Simon has argued, “Megan’s laws” in some ways reflect a lessening accountability for government to address the crime problem; instead, the state relies on the efforts of its citizens to police themselves, motivated to do so out of fear of crime. (Simon 2000; Simon & Leon forthcoming).  Mandated reporting may have a similar genesis — rising anxieties about a social problem which particularly horrifies us have led us to look to each other, and to our professionals, for the protection which the state has so far failed to provide.

The California Bar and the Debate over the Duty of Confidentiality

    It was in this context of heightened anxiety and drive for accountability that the American Bar Association passed Rule 1.6 in 1983, which states that a lawyer "may" reveal confidences if she reasonably believes such revelation is necessary to prevent the client from committing a criminal act that will result in death or substantial bodily harm. (McCarthy 1997; Center for Professional Responsibility and American Bar Association. House of Delegates. 2003).  Rule 1.6 has undergone some change since 1983, however: the language as amended in 2003 now separates the bodily harm clause from the criminal act clause, and also contains a clause directing attorneys to “comply with the law” (Rule 1.6(b)(1-2; 6).

    Two aspects of the original ABA model rule depart from statutory mandated reporting: revelation is both voluntary and prospective.  Unlike reporting laws which require people to report known cases of past (and potentially continuing) abuse, the ABA rule allows the attorney to make a judgment call without fear of professional discipline.  Note, however, that the inclusion of the mandate to violate confidentiality in order to “comply with the law” in the 2003 revision removes this discretion.

    The ABA describes the confidentiality of the attorney-client relationship as a “fundamental principle” and trust as a “hallmark” of that relationship (Center for Professional Responsibility and American Bar Association. House of Delegates. 2003) Comments to Rule 1.6, §2).

    The California Bar began to grapple with how to reconcile the requirements of law and professional ethics in 1987, when it first requested new, clearer rules from the state Supreme Court.  California lawyers found themselves caught not only between the broad reporting requirement and the duty of confidentiality, but also between a more specific conflict of laws: California’s Business & Professions Code §6068(e) (requiring lawyers to "maintain inviolate" client confidences) and Evidence Code §956.5 (providing an exception when a lawyer believes a client will commit a criminal act that will cause death or great bodily harm).5  The Bar’s Committee on Professional Responsibility and Conduct (COPRAC) withdrew their first proposed clarification in 1987 in the face of court questions; the court rejected a second without comment by the court in 1993 (McCarthy 1997).

    In 1999, fear of crime against children factored directly into the debate in California about a confidentiality exception, when a media panic involving an abducted teen led Assembly Member Tony Strickland to introduce the Kali Manley bill, AB 1286, to require lawyers to share information about victims of abductions.  Public outrage was directed in particular at the suspect’s attorney, who was thought to have information about the teen’s whereabouts that he did not reveal during the search for her (Johnshon 1999), originally cited in Mohr 2002).  The original legislative proposal would have required this reporting only when the information was requested from an attorney by law enforcement officers.  The text was later amended to require the report independent of law enforcement involvement.  Political will then swung the other way and the last attempt to craft an acceptable statute would have removed the mandatory requirement, stating that a lawyer could voluntarily reveal such information.6  The bill ultimately failed (see further discussion below).

    By 2002, every state except California had a life-threatening criminal act exception (Mohr (2002) 310).  Finally, in 2004, the California legislature forced the issue, and rule 3-100 took effect.7  Assembly Bill 1101 directed the state to create an ethics rule which “reflected public policy.”  The new rule is worth considering in full, since it includes several carefully crafted statements:

Rule 3-100. Confidential Information of a Client

(A)  A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule.

(B)  A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.

(C)  Before revealing confidential information to prevent a criminal act as provided in paragraph (B), a member shall, if reasonable under the circumstances:
(1)  make a good faith effort to persuade the client: (i) not to commit or to continue the criminal act or (ii) to pursue a course of conduct that will prevent the threatened death or substantial bodily harm; or do both (i) and (ii); and
(2)  inform the client, at an appropriate time, of the member's ability or decision to reveal information as provided in paragraph (B).

(D)  In revealing confidential information as provided in paragraph (B), the member's disclosure must be no more than is necessary to prevent the criminal act, given the information known to the member at the time of the disclosure.

(E)  A member who does not reveal information permitted by paragraph (B) does not violate this rule.

    Like the ABA model rule, the California rule is prospective and voluntary.  However, the California rule is more explicit in describing the mechanics of how violation of confidentiality should take place.  For example, consider an attorney advising a client regarding a custody determination of a young child.  The client admits that her current boyfriend has abused the child in the past, and continues to be near the child.  An attorney following the California rules has several choices.  First, regardless of other responses, he could — and arguably must — inform the client that allowing the boyfriend continued access to the child might cause her to be charged with criminal negligence of some kind.  Then, he could do nothing further, perhaps reasoning that the abuse is in the past. 3-100(b)  He could tell the client that she must remove the opportunity for future abuse. (3-100(c)(1).  He could inform the client that he planned to file a report with Child Protective Services. 3-100(c)(2).  While California law does not view attorneys as mandated reporters, an attorney may decide that such reporting is in the best interests of the child or otherwise is the right thing to do — this will not fall under the purview of Rule 3-100.8,9  The commentary to Rule 3-100 makes it clear that this final option is not permitted if based only on the past acts:

Although a member is not permitted to reveal confidential information concerning a client's past, completed criminal acts, the policy favoring the preservation of human life that underlies this exception to the duty of confidentiality and the evidentiary privilege permits disclosure to prevent a future or ongoing criminal act.

In addition, once an attorney has violated confidentiality, the commentary to Rule 3-100 states that “in all but extraordinary cases the relationship between member and client will have deteriorated so as to make the member's representation of the client impossible.  Therefore, the member is required to seek to withdraw from the representation (cite omitted), unless the member is able to obtain the client's informed consent to the member's continued representation” (Discussion, para 11).  After weighing the consequences of violating confidentiality, an attorney may decide that he can do the family more good by continuing representation than by filing a report, especially with the common knowledge that many county departments of child protective services are too overworked to follow through on all cases.  Ultimately, though Rule 3-100 clarifies the particular conflict of laws which troubled California lawyers, it does not explicitly address the problem of past abuse.

    Facing this complex bundle of concerns, attorneys may look for creative ways to ensure that reports are made by third parties.  For example, consider the approach suggested to a legal ethics class by an attorney in a domestic violence practice.  After hearing the client describe her child’s account of abuse by her husband, this attorney suggested her client call a child abuse hotline.  The attorney knew that if the mother shared the same information with the advice line, a report would be triggered, but she did not tell the mother (her client) this.  Such misleading advice seems to violate the spirit of the attorney-client relationship, if not the letter. ABA Model Rule 2.1 (describing an attorney’s role as advisor).  This example suggests that California has not provided a clear path for attorneys faced with such situations.

Comparing the Attorney’s Duty with the Clergy’s Limited Privilege

    Before discussing in more detail how we might reconcile the state’s interest in protecting children through a mandated reporter system with the duty of confidentiality, it is worth a short detour into a comparison between the way California law views attorneys and clergy members with respect to their duties of confidentiality.

    As discussed, attorneys are bound by a professional duty to maintain their client’s confidences.  Similarly, the leaders of most religious congregations, including those who offer pastoral care, hereinafter referred to as “clergy,” usually feel bound by their own religious traditions to keep the confidences of those who seek their counsel.  Both attorneys and clergy are exempt from California’s mandatory reporting laws, but nationally there is a great deal of variability in whether clergy are explicitly included in reporting statutes as well as uncertainty about whether clergy would be held liable in practice for failing to report.  Likely because of the Catholic priest abuse scandals and perhaps also because clergy may be more likely to encounter instances of abuse, there has been more judicial, legislative and scholarly interest in the issue of a clergy exception to mandated reporting schemes than in exceptions for attorneys.

    California’s Child Abuse Reporting Act clearly excludes clergy acting in a counseling role.  The relevant section reads:

A clergy member who acquires knowledge or a reasonable suspicion of child abuse or neglect during a penitential communication is not subject to subdivision (a)[which sets out the reporting requirement].  For the purposes of this subdivision, "penitential communication" means a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of his or her church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret.
California Penal Code sec. 111666(d)(1)

    But clergy are not excepted carte blanche.  A subsequent section clarifies that clergy who are not acting in what would likely be read broadly as a counseling role (described in the statute as engaged in “penitential communication”) but who are serving another role which would bring them under the rubric of the reporting statute, such as providing childcare or teaching Sunday school, would in fact be required to report.  From this vantage point, attorneys appear to have broader protection, since the law does not limit their ability to maintain confidentiality based on the particular function they are carrying out.  Instead, as discussed above, lawyers may report continuing abuse, but are never compelled to report.10

    Early into the child sex abuse panic, Professor Mary Mitchell explored the rationale for the clergy exception, noting in passing that the rationale for respecting attorney client confidences, in contrast, was generally considered “weak.”  Despite her assertion, a more extended comparison between the two sets of rationales may help illuminate on how and why lawyers are “different.”

    Mitchell offers three categories of justification for protecting the penitential relationship.  First, Mitchell considers society’s interest in preserving the relationship, using Wigmore’s four-part test as a guide:

(1) Whether the communications are intended to confidential;

(2) Whether this element of confidentiality is essential to the relation between the parties;

(3) Whether the relation is one which the community believes is necessary; and

(4) Whether the disclosure would be more harmful to that relation than the benefit that would be gained from disclosure (Wigmore 1961, 2258, as cited in Mitchell at 762).

The key consideration is the balance between the social benefit of the clergy relationship as weighed against the social benefit of triggering a report of child abuse.  While Mitchell easily finds the balance tipped in favor of the clergy relationship, this outcome is more controversial than she would allow.  One wonders how a court, faced with a prosecution of a member of the clergy for non-compliance with the reporting statute, would determine how public opinion views this balance?  In light of decreasing church attendance in many segments of the population, combined with the disaffection with the Catholic Church caused by the abuse scandals, public opinion may not clearly value the clergy-penitent relationship over the perceived benefits of reporting child abuse.  While the benefits of the clergy relationship may include spiritual and emotional health and well-being, it is hard to justify the exemption for clergy, who often are untrained in clinical skills and unevenly trained in counseling compared to other therapeutic professionals.  Further, when considering the training that attorneys receive for their work as well as the interests of life, liberty and property which they protect, there seems to be a more obvious social interest in the attorney-client relationship.

    But Mitchell presents two more rationales for the clergy exemption which do not apply to the attorney-client relationship.  Mitchell offers an interpretation of the right to privacy as found by the Court since Roe which she feels could justify protecting the intimate conversations between a spiritual advisor and advisee (770-777).11  While this argument might similarly made for other therapeutic relationships, as above, it is possible that Americans find a peculiar intimacy in spiritual conversations, worth more than the often-embarrassing information regarding criminal or other liable behavior that a client might communicate to legal counsel.  But Mitchell’s strongest argument for the unique value of the clergy exception is her reading of its viability as a constitutional right, grounded primarily in the non-establishment clause of the first amendment (798-823).12  In 1813, in the first case of its kind, a New York court found that a Catholic priest could refuse to violate penitential confidences because the Constitutional protected his freedom of religion (People v. Phillips, (N.Y. Ct. Gen. Sess. 1813), an unpublished opinion discussed in Mitchell at 737).  Grounding an exception in such a culturally-valued constitutional right clearly distinguishes clergy from attorneys.

    In summary, some reasons for protecting confidences are stronger for clergy while others are stronger for attorneys, with no obvious reason for California’s more circumscribed protection of the clergy-penitent relationship.  This discussion provides an introduction to a more sustained analysis of the attorney’s duty of confidentiality.

Contradictions and Confusions: Reconciling Mandated or Elective Reporting with the Duty of Confidentiality

    In his exploration of what he sees as an age of “experimentation” with lawyers as “crime detectors and informants,” Mosteller poses a variation on the hypothetical described above (at 7-8, describing a client in a custody case with an abusive boyfriend).13  Mosteller reads the hypothetical as having an uncertain message: does it compromise the ability of the attorney to do his job and to protect clients?  Does it provide an opportunity for bringing an abusive situation to light that otherwise would go unaddressed?

    Empirical research has not addressed how these sorts of situations work out in practice, nor do we know how often attorneys report child abuse.14  Clearly, every attorney can now make the choice to report such crime, and face the professional consequences, if any.15  In California, those consequences are no longer an issue, as long as the reporting is about a prospective crime that may cause substantial bodily harm (see previous discussion of how child abuse fits that definition, infra).  In 18 states (excluding California), mandatory reporting laws apply to all citizens, including lawyers, so lawyers in these states would potentially face criminal penalties for not reporting.16  But should California follow the model of states like Mississippi, Nevada, Ohio and Oregon and specifically compel lawyers to report?  I consider the arguments for and against.

Lawyers ARE Different: Against Mandated Reporting

    Postponing, for now, a discussion of the Bar’s interest as a profession to retain a unique status, there are several reasons why the kind of work that lawyers do for their clients makes mandatory reporting risky.  Many of these reasons are described in commentary to the model rules and in the debate about California’s rule 3-100.

    First among these reasons for preserving confidentiality is concern over the “freezing effect” that mandatory reporting might have on the attorney-client relationship.  Our adversarial system is based upon the notion that the client will share all relevant information with her advocate.  As the ABA Commentary to Rule 1.6 states, “The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct.”

    Evidence of this kind of chilling effect is easily found in the literature describing other professionals who are mandated reporters.  My own participant observation with therapists also provides many examples of the perceived harm to the therapeutic relationship caused by mandated reporting.  For example, therapists who work with sex offenders generally believe that honesty and accountability for past crimes is a precondition for treatment.  But without the ability to assure confidentiality,17 clients may refuse to participate. (see, e.g., U.S. v. Antelope, describing a probationer’s refusal to incriminate himself despite his desire for therapy).

    In declaring their opposition to the modification later enacted as rule 3-100, several attorneys went on legislative record about similar concerns.  This bill, they argued, will create inherent conflicts of interests between lawyers and their clients and between an attorney's duties to his or her client and the new duties (of disclosure) to non-clients. (Kim 2003).  Note that this strong concern was expressed about the rule which clarified that lawyers may report prospective crime.

    Mosteller adds an additional caution regarding mandatory reporting of child abuse: what would prevent expansion of the reporting requirement into other areas of repetitive crime?  Although current cultural preoccupations center on sex crime and violence against children, recidivism statistics show much higher rates of re-offending for other kinds of crimes.  We might arguably prevent more crime and cause greater social welfare by requiring attorneys to report other kinds of criminal behavior as well.

    Finally, recall the original rationale behind mandated reporting: those professionals most likely to be in contact with children and therefore in a position to observe evidence of harm should report.  If all of those mandated reporters are doing their duty, it seems unlikely that a report would not already have been produced by the time an attorney discovers harm to a child.  So perhaps we should work harder to enforce penalties against current reporters rather than expanding the requirement.

Mandating that Lawyers Report

    The most compelling argument that lawyers are different and therefore should not report has to do with the need to preserve the advocate’s ability to protect the client’s interests.  These interests may range from property interests to liberty or even life.  Lawyers argue that such high stakes skew the balance away from society’s interest in protecting children.

    But what about the interest in medical, psychological or spiritual care?  Situations which threaten the patient/client’s life are more likely to occur in these contexts than in the legal arena.  If doctors must provide life-saving care to patients who may not be honest about their own risky or violent behavior then surely lawyers can similarly work out ways to provide the best service they can to their clients.  In fact, while it is arguable that in certain situations, for example criminal defense, lawyers may craft a better legal strategy without being fully informed, it is difficult to imagine an analogy in the medical or psychological arena.

    If we recognize that not nearly enough is being done to protect children from harm, then bringing attorneys into the mandatory reporting system seems worth the potential chilling effect on the attorney-client relationship.  Many of our legal and ethical values as a society recognize the need to balance competing interests.  We may determine that the chance to save children from harm outweighs our concern for preserving the rights associated with the adversarial system.

Broadening the Confidentiality Exception for Child Abuse

    A compromise measure that would maintain the duty of confidentiality and also address our concern for children would be to broaden the exception.  Instead of requiring a continuing or prospective threat of serious bodily injury, perhaps we should explicitly allow lawyers to violate confidentiality in order to report any knowledge they may have about past crimes that involve children.  This preserves the ability of attorneys to make the choice to report or not, but also protects them from professional censure.  It would also prevent the kind of maneuvering described by the domestic violence attorney who violated the spirit of professional ethics, allowing attorneys to take responsibility for reports they believe should be made without finding creative ways to shift that responsibility to others.

Conclusion: The Professional Interest in Maintaining Discretion

    Regardless of opinion as to the policy decision, it is worth considering how the legal profession avoided inclusion in the mandatory reporting system while so many others did not.  A structural/functionalist account of the Bar as a profession would credit society with recognizing the role professions play as social glue.  It would further acknowledge the need for an independent Bar to act as gatekeepers for our individual liberties.  But as discussed above, these arguments fail to distinguish attorneys from other professions which also perform vital functions.

    A Weberian account provides a more satisfying explanation.  Weber’s discussion of the system of professions, elaborated by contemporary sociologists such as Andrew Abbott, explains that the protection and privilege attached to professional status is maintained through conflict (Abbott 1988).  This conflict centers on controlling boundaries, especially the boundaries of knowledge and expertise, such as the ABA’s control of the accreditation of law schools.  Professions maintain themselves through an asymmetry of expertise: the client must trust the professional and the professional must respect the client and her colleagues; these relations are guaranteed by institutional forms such as associations, licensure requirements and ethics codes.

    Abbot explains that a profession maintains jurisdiction in three ways, legal jurisdiction, social jurisdiction and control over the actual work. Id. at 60-63.  The first two are clearly implicated by the conflict between the duty of confidentiality and a system of mandated reporting.  Legal jurisdiction is formal control of work.  This bears on the fact that it is the lawyer’s professional code of ethics that controls in California, not a legislatively or popularly imposed mandatory reporting law.18,19  Public jurisdiction describes a claim for legitimate control of a particular kind of work, to do work as the profession wishes, and to exclude other workers, "Public jurisdiction, in short, is a claim of both social and cultural authority" (Abbot, 60).  So the ability of attorneys to practice law as they wish, free of reporting requirements, reflects substantial social and cultural authority.  This account relies on the assertion that as a society we believe in lawyers and their expertise, and as a result we accept that they know best how to determine when and if to violate confidentiality.

    One indication of this strength is the defeat of the Kali Manley bill, discussed above.  Considering the strength of the victim’s rights movement, especially when it acts in concert with law enforcement and with the power of public outrage behind it, it is truly remarkable that no version of the Kali Manley bill passed into law.  One would not expect the criminal defense bar to wield the kind of power it did in order to resist this pressure; this is a testament to the power of the profession.

    In sum, lawyers have largely resisted inclusion in mandatory reporting schemes because they are a powerful profession, with a strong claim of expertise that we are reluctant to interfere with.  So lawyers may be “different” in terms of their power to defend against intrusions on their jurisdiction.

    Is this a difference worth preserving?

    Mandatory reporting is still something of an experiment in terms of its impact on public safety and the protection of vulnerable populations.  Until we can assert with conviction that requiring doctors, teachers and dental hygienists to report leads to beneficial consequences, there is little reason to bring attorneys under the umbrella as well.  Thus, whether or not lawyers are different, expansion of mandated reporting does not have a rational justification.  In fact, if lawyers’ “difference” is their professional power, perhaps discretion should be returned to health and education personnel as well.


 1 Note that mandatory reporting laws also problematize the attorney-client privilege; civil requirements, including Tarasoff warnings, also introduce conflict. However, this essay focuses primarily on the conflict between mandatory reporting laws (which typically carry criminal penalties) and the ethical duty of confidentiality which is broader that the evidentiary rules governing privileged information. The duty of confidentiality extends to all information related to the client, see, eg ABA Model Rule 1.6, infra.  [Back]
 2 Child abuse has been characterized as a “national emergency” and as “a societal problem of tragic proportions.” (U.S. Advisory Board 1989; Mosteller 1992)  [Back]
 3 As Mitchell notes, our common law tradition has generally been averse to imposing duties of care on strangers, highlighting the social importance of mandatory reporting laws as a break with this tradition, “As this archaism rightly succumbs to the legal doctrinization of the interdependence of persons, the duty to protect children should be at the vanguard.” (Mitchell, M. H. (1987). "Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion." Minnesota Law Review 71: 723-825., 823)  [Back]
 4 For a summary of the act, see the National Clearinghouse on Child Abuse and Neglect Information,, (accessed 12/18/01).  [Back]
 5 See Mohr 2002, 337-345 for a discussion of case law that bears on this conflict, specifically, General Dynamics Corp. v. Superior Court, 876 P.2d 487 (Cal. 1994).  [Back]
 6 Note that the three versions of the bill moved through three different ways of addressing the attorney-client privileged versus the duty of confidentiality.  [Back]
 7 For a more detailed account of the struggle to enact an exception, see Mohr 2002; Mohr writes from his perspective as a member of COPRAC.  [Back]
 8 California Penal Code 11165.7(a)(identifying mandated reporters); 111666(g)(stating that others “may” report).  [Back]
 9 It is interesting to note that California’s law takes great pains to describe why and how clergy should violate their confidentiality when required to report, but nowhere addresses how or whether an attorney may do so. 11166(d). [Back]
10 Compare, in addition, the difference between the evidentiary rules guiding the attorney client privilege versus the clergy-penitent privilege. California’s Code of Evidence sections 950-962 details the former, including several cases in which the privilege is abrogated, including something similar to the duty’s criminal act exception. In contrast, Evidence Code 1030-1034 succinctly describes an absolute privilege regarding penitential communications, with no explicit exceptions.  [Back]
11 I do not explore here whether privacy jurisprudence has evolved since the time of Mitchell’s writing in such as way as to support or undermine her suggestion; rather, I present this rationale as one which shows the uniqueness of the clergy function.  [Back]
12 Mitchell’s discussion of precedent does not argue that there is clear protection for the clergy privilege; in addition, I do not consider evolving jurisprudence here.  [Back]
13  In his hypo, an attorney meets with a couple for the first time to discuss their financial affairs. In the course of the conversation, the father admits to having harmed one of the children. In Mosteller’s view, the attorney must counsel that client that he has committed a crime, and must also counsel the spouse that her failure to report her husband could lead to criminal prosecution.  [Back]
14 See, however, empirical research examining how therapy may or may not be compromised by violations of confidentiality, eg Shuman & Weiner, The
Privilege Study: An Empirical Examination of The Psychotherapist-Patient
Privilege, 60 N.C.L. REV. 893, 894 (1982).  [Back]
15 As of 1992, Mosteller had found no documentation of an attorney prosecuted for failure to report nor had Mohr by 2002 (see fn 166), but other professionals have been and continue to be — most often physicians.  [Back]
16 Confusingly, some of these 18 states require all citizens to report, but also provide exceptions for the attorney-client privilege. But Connecticut, Indiana, Nebraska, Oklahoma, Tennessee, Texas, and Utah do not provide for attorney-client privilege. Information, N. C. o. C. A. a. N. (2003). Child Abuse and Neglect State Statute Series At a Glance: Mandatory Reporters of Child Abuse and Neglect. Washington D.C., U.S. Dep't of Health & Human Services: 1-26.  [Back]
17 Only two counties in California provide non-prosecution agreements for admissions made during state-mandated sex offender therapy.  [Back]
18 Note, that California does regulate its lawyers through both the state bar Cal. Rules of Prof'l Conduct (2006) and statutes (Cal. Bus. & Prof. Code §§ 6000-6210 (West 1990 & Supp. 2006). I would point out, however, that the statutory enactments are strongly influenced by the Bar.  [Back]
19 This begs the question: how powerful is the Bar in each of the states which does mandate attorney reporting?  [Back]

Works Cited

Child Abuse and Prevention Act of 1974. P.L. 93-247

Abbott, A. D. (1988). The System of Professions: An Essay on the Division of Expert Labor (Paperback). Chicago, University of Chicago Press.

Besharov, D. J. (1985). "'Doing Something' About Child Abuse: The Need to Narrow the Grounds for State Intervention." Harv. J. L. & Pub. Pol'y 539.

Center for Professional Responsibility and American Bar Association. House of Delegates. (2003). Annotated Model rules of professional conduct. Chicago, IL, Center for Professional Responsibility, American Bar Association.

Council, F. R. (1992). Threats to Children: A Generation Under Siege. Free to be a Family. Washington DC.

Diab, J. (2004). "Child Abuse, Experts and the Law: Making Massachusetts Expert Evidence Friendly." Suffolk U. L. Rev. 37: 121-140.

Information, N. C. o. C. A. a. N. (2003). Child Abuse and Neglect State Statute Series At a Glance: Mandatory Reporters of Child Abuse and Neglect. Washington D.C., U.S. Dep't of Health & Human Services: 1-26.

Johnshon, P. J. (1999). Manley Case Prompts Bill Proposal. Los Angeles Times: B1.

Kim, S. (2003). Analysis of Assembly Bill 1101. Sacramento, Judiciary Committee staff.

McCarthy, N. (1997). "Proposed rule may permit breach of confidentiality." California Bar Journal (July).

Mitchell, M. H. (1987). "Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion." Minnesota Law Review 71: 723-825.

Mohr, K. (2002). "California's Duty of Confidentiality: Is it Time for a Life-Threatening Criminal-Act Exception?" San Diego Law Review 39: 307.

Mosteller, R. P. (1992). "Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant." Duke Law Journal 42(2): 203-278.

Poage, T. K. (1991). "COMMENT: Constitutional law: Battered Child Syndrome Evidence: Balancing An Accused's Right to Due Process with the Evidentiary Problems Inherent in Child Abuse Cases." Washburn Law Journal 32: 118-132.

Simon, J. (2000). "Megan's Law: Crime and Democracy in Late Modern America." Law and Social Inquiry 25(4): 1111.

Simon, J. and C. Leon (forthcoming). The Third Wave: American Sex Offender Policies Since the 1990s. Penology. S. G. Shoham. Tel Aviv.

Wright, L. (1994). Remembering Satan (Hardcover)(Paperback)(Paperback (Reprint)). New York, Knopf.

Younes, L. A. (1987). State Child Abuse and Neglect Laws: A Comparative Analysis. Washington DC, U.S. Dep't of Health & Human Services.

U.S. Advisory Board on Child Abuse and Neglect. (1989) “Child Abuse and Neglect: Critical First Steps in Response to a National Emergency.” Washington D.C.

* Chrysanthi Leon, JD, PhD
Assistant Professor, Sociology and Criminal Justice
University of Delaware  [Back]

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