The Loss of Privilege

A potential new client (PNC) contacted my office recently. He was concerned about his recent communication with a member of the clergy from whom he'd sought spiritual advice. Seeking absolution with the assistance of his spiritual adviser, the PNC confessed, in confidence, an inappropriate sexual contact with a minor child.

If you read Article V of the Texas Rules of Evidence (concerning privileges) you'll find several rules about the admissibility of statements made to certain persons. For instance, communications made in confidence to your lawyer generally cannot be disclosed. Statements made in confidence to your spouse generally cannot be disclosed. And statements made to a member of the clergy generally cannot be disclosed.

Unfortunately for my PNC, and others similarly situated, there are other rules and statutes trumping the evidentiary rules of privileges. For example, if a person obtains the services of a lawyer to enable or aid anyone to commit a crime, the government can compel the divulging of those communications. Furthermore, the spousal privilege does not apply in situations where the communications concern a crime against the other spouse or any minor child. Finally, a major exception to the rules of privilege relate to the "duty to report" provisions of Texas Family Code.

Section 261.101 of the Family Code compels the reporting of "child abuse" by just about everyone on the face of the planet. In particular, "professionals" are required to personally report the occurrence of child abuse. Following is a quote from the Code concerning this duty:

(b)In this subsection, "professional" means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

(c) The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

Note section "c" destroys the privileged communications occurring with your pastor, social worker, mental health professional, and yes, even your lawyer. Dangerous stuff. In fact, my PNC is not the first person contacting my office to discuss privileges and the duty to report. I've had this discussion with pastors at my church, accountants, and others facing similar dilemmas.

Rest assured, I believe my duty of loyalty to a client trumps even the duty to report. Over my dead body will the government compel me to reveal communications made by clients in confidence. But others must be cautious to whom they reveal private information, especially when it involves alleged child abuse of any kind. If you have any questions, call and ask. I promise I will never tell!