Wednesday, August 5, 2009

The Loss Of Privilege Redux

From reliable sources I learned that feathers ruffled from my recent post on the loss of privilege when a "professional" becomes aware of "child abuse" during their professional interaction with clients, patients, and the like. What really got someone upset was my vehement position on the defense lawyer's duty of loyalty toward their client, even concerning communications about possible child abuse. Here's my quote:
"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."
First of all, persons need to know when they call me to discuss legal problems what they tell me will remain confidential. That's lawyering 101. If a client wasn't assured communications were secret, the chilling effect upon attorney/client relationships would be devastating. No one would trust anyone, including their lawyer. Beyond this, the last thing a paying client wants to hear is what they just revealed to their lawyer will now be revealed to the police.

Rest assured if someone called me explaining they were in the midst of criminal activity, of any kind, my first instruction would be to terminate the criminal activity immediately. I'm a loving father and certainly encourage the protection of children from any abuse. In fact, the ethical rules to which I am professionally bound require me to reveal a confidential communication "[w]hen the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act." But this ethical rule pertains to future criminal acts. What about past acts, particularly involving child abuse?

The feather ruffling issue was whether lawyers have a duty to report "past" acts of child abuse after a client consults with the lawyer for their professional services. In particular, what was my personal duty if someone called me on the telephone, told me they had sexually molested a minor child, and needed my professional legal services to protect them? My position last week was "hell no." However, after consultations with my reliable sources and another look at the Texas Disciplinary Rules of Professional Conduct I might need to qualify my "hell no."

The ethical rules also say: "A lawyer may [not must] reveal confidential information: 'when the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.'" So, is Section 261.101 of the Texas Family Code "other law" compelling me to reveal private information otherwise protected? My professional instinct says no. But I'm willing to leave the question open for a time and allow my reliable sources to help me figure this out.

It's a difficult question. It also directly effects my practice of criminal defense law and the practice of law for thousands of professional colleagues all over the state facing similar ethical dilemmas. We'll revisit this again soon.

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