BETWEEN A ROCK AND A HARD PLACE
AN ATTORNEY'S DUTY TO REPORT CHILD ABUSE:

Laura W. Morgan, Executive Editor, Divorce Litigation

All fifty states and the District of Columbia have enacted statutes that mandate the reporting of suspected child abuse. States are required to enact statutes that provide for the reporting of known and suspected child abuse and neglect, and that provide for certain procedures and programs relating to child abuse in order to qualify for federal grant monies under the Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5101-5106 (West 1997).

Many of these statutes were patterned after a model statute promulgated by the United States Department of Health, Education, and Welfare in 1963, which requires physicians to report suspected cases of child abuse, and which makes the failure to make such a report a misdemeanor. Children’s Bureau, United States Department of Health, Education, and Welfare, The Abused Child: Principles and Suggested Language of Legislation on Reporting of the Physically Abused Child (1963). Since 1963, however, the statutes have been amended to expand both the circumstances that give rise to the duty to report abuse and the class of persons who are required to report abuse. The statutes have also been expanded to include civil liability as well as criminal liability. See generally, Douglas J. Besharov, Child Abuse and Neglect: Liability for Failing to Report, 22 Trial 67 (August 1986) (discussing the civil liability of health care professionals for the failure to report child abuse); Martha L. Deed, Mandated Reporting Revisited, 14 Law & Policy 219 (April/July 1992) (discussing the duty of a psychotherapist to report child abuse); Wesley B. Crenshaw and James W. Lichtenberg, Child Abuse and the Limits of Confidentiality: Forewarning Practices, 11 Behavioral Sciences and the Law 181 (1993) (discussing the duty of a psychotherapist to report child abuse); Danny R. Veilleux, Annotation, Validity, Construction, and Application of State Statute Requiring Doctor or Other Person to Report Child Abuse, 73 A.L.R.4th 782 (1989).

As to the persons who must report child abuse, the statutes may be divided into four categories. First, there are those statutes that require a particular and exclusive class of persons to report suspected cases of child abuse that do not include attorneys. Generally, the class comprises health care practitioners and child custodians. These states include Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, District of Columbia, Georgia, Hawaii, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, New York, North Dakota, South Carolina, South Dakota, Vermont, Virginia, Washington, and West Virginia. It has been generally held that where the statute does not mandate that attorneys report suspected cases of child abuse, then the attorney has no duty to report under the criminal law, and the attorney-client privilege remains intact. E.g., D.A.S. v. Colorado, 863 P.2d 291 (Colo. 1993).

Second, there are those statutes that require a particular and exclusive class of persons to report suspected cases of child abuse that do include attorneys. These states include Mississippi and Nevada.

Third, there are those statutes that require any person to report suspected cases of child abuse, including attorneys, either explicitly or implicitly by not providing for an exception based on attorney-client privilege. These states include Idaho, Indiana, Nebraska, New Mexico, North Carolina, Oklahoma, Pennsylvania, Texas, and Utah.

Fourth, there are those statutes that require any person to report suspected cases of child abuse, but which then specifically excludes attorneys from reporting by preserving the attorney-client privilege. These states include Delaware, Florida, Kentucky, New Hampshire, New Jersey, Ohio, Oregon, Rhode Island, Tennessee, and Wyoming.

The following is a summary for each state of who must report suspected cases of child abuse and neglect:

(1) Alabama: Ala. Code § 26-14-3 (Supp. 1997): Mandatory reporting by hospitals, clinics, sanitariums, doctors, physicians, surgeons, medical examiners, coroners, dentists, osteopaths, optometrists, chiropractors, podiatrists, nurses, school teachers and officials, peace officers, law enforcement officials, pharmacists, social workers, day care workers or employees, mental health professionals, or any other person called upon to render aid to medical assistance to any child. Ala. Code § 26-14-10 specifically provides that attorney-client privilege is not abrogated by the reporting statute.

(2) Alaska: Alaska Stat. § 47-17.020 (Michie 1996): Mandatory reporting by practitioners of the healing arts, school teachers and administrators, social workers, peace officers and officers of the Department of Corrections, administrative officers of institutions, child care providers, employees of domestic violence and sexual assault programs, and substance abuse counselors. Alaska Stat. § 47.17.060 makes no mention of attorney-client privilege, but abrogates physician-patient and husband-wife privilege in cases of abuse.

(3) Arizona: Ariz. Rev. Stat. Ann. § 13-3620(A) (West Supp. 1997): Mandatory reporting by any physician, hospital intern or resident, surgeon, dentist, osteopath, chiropractor, podiatrist, county medical examiner, nurse, psychologist, school personnel, social worker, peace officer, parent, counselor, clergyman or priest or any other person having responsibility for the care or treatment of children. Ariz. Rev. Stat. Ann. § 13-3620(F) specifically preserves attorney-client privilege.

(4) Arkansas: Ark. Code Ann. § 12-12-507(b) (1995): Mandatory reporting by any physician, surgeon, coroner, dentist, osteopath, resident intern, licensed nurse, medical personnel of a hospital, teacher, school official, school counselor, social worker, family service worker, day care center worker, foster care worker, mental health professional, peace officer, law enforcement official, prosecuting attorney, or judge. Ark. Code Ann. § 12-12-507(c) provides that no privilege shall relieve anyone required to make a notification of the requirement to make a notification. Ark. Code Ann. § 12-12-518(1) specifically preserves attorney-client privilege.

(5) California: Cal. Penal Code § 11166 (West Supp. 1998): Mandatory reporting by any child care custodian, health practitioner, employee of a child protective agency, child visitation monitor, firefighter, animal control officer, humane society officer, clergy member, or commercial film and photographic print processor.

(6) Colorado: Colo. Rev. Stat. Ann. § 19-3-304(2) (West 1997): Mandatory reporting by any physician or surgeon, child health associate, medical examiner or coroner, dentist, osteopath, optometrist, chiropractor, chiropodist or podiatrist, registered nurse or licensed practical nurse, hospital personnel, Christian Science practitioner, public or private school official or employee, social worker, mental health professional, dental hygienist, psychologist, physical therapist, veterinarian, peace officer, pharmacist, commercial film processor, firefighter, or victim’s advocate. Colo. Rev. Stat. Ann. § 19-3-311 does not mention abrogation of the attorney-client privilege.

(7) Connecticut: Conn. Gen. Stat. Ann. § 17a-101 (West Supp. 1998): Mandatory reporting by any physician or licensed surgeon, resident physician or intern in any hospital, nurse, licensed practical nurse, medical examiner, dentist, dental hygienist, psychologist, school teacher, school principal, school guidance counselor, school paraprofessional, social worker, police officer, clergyman, pharmacist, physical therapist, osteopath, optometrist, chiropractor, podiatrist, mental health professional, physician assistant, licensed substance abuse counselor, licensed marital and family therapist, sexual assault counselor, battered women’s counselor, or any person paid to care for a child in any public or private facility, day care center or family day care home.

(8) Delaware: Del. Code Ann. tit. 16, § 903 (1995): Mandatory reporting by any physician, any other person in the healing art, intern, resident, nurse, school employee, social worker, psychologist, medical examiner, or any other person who knows or reasonably suspects child abuse. Del. Code Ann. tit. 16, § 908 specifically preserves attorney-client privilege.

(9) District of Columbia: D.C. Code Ann. § 2-1352(b) (1994): Mandatory reporting by any physician, psychologist, medical examiner, dentist, chiropodist, registered nurse, licensed practical nurse, person involved in the care and treatment of patients, law enforcement officer, school official, teacher, social service worker, day care worker, or any mental health professional. D.C. Code Ann. § 2-1355 does not mention the attorney-client privilege.

(10) Florida: Fla. Stat. Ann. § 415.504 (West 1998): Any person, including but not limited to, physician, osteopathic physician, medical examiner, chiropractor, nurse, hospital personnel, health or mental health professional, practitioner who relies on spiritual means for healing, school teacher or other school official or personnel, social worker, day care center worker, or other professional child care, foster care, residential, or institutional worker, or law enforcement officer. Fla. Stat. Ann. § 415.512 specifically provides that attorney-client confidences shall be a defense to failure to report.

(11) Georgia: Ga. Code Ann. § 19-7-5 (Supp. 1997): Mandatory reporting by physicians, hospital or medical personnel, dentists, licensed psychologists, podiatrists, registered professional nurses, licensed practical nurses, professional counselors, social workers, marriage and family therapists, school teachers, school administrators, school guidance counselors, child welfare agency personnel, child counseling personnel, child service organization personnel, or law enforcement personnel.

(12) Hawaii: Haw. Rev. Stat. Ann. § 350-1.1 (Michie 1994): Mandatory reporting by any licensed or registered professional in the healing arts or any health related profession, employees or officers of any public or private school, employees or officers of any public or private agency or institution providing health care, employees or officers of any law enforcement agency, providers of child care, medical examiners and coroners, employees of any agency providing recreational or sports activities. Haw. Rev. Stat. Ann. § 350-5 does not mention attorney-client privilege.

(13) Idaho: Idaho Code § 16-1619(a) (Supp. 1997): Mandatory reporting by any physician, resident, intern, nurse, coroner, school teacher, day care personnel, social worker, or any other person having reason to believe that a child has been abused. Idaho Code § 16-1619(c) exempts duly ordained ministers of a religion.

(14) Illinois: 325 Ill. Comp. Stat. Ann. 5/4 (West Supp. 1998): Mandatory reporting by any physician, resident, intern, hospital, hospital administrator and personnel engaged in examination, care and treatment of persons, surgeon, dentist, dental hygienist, osteopath, chiropractor, podiatrist, physician assistant, substance abuse treatment personnel, Christian Science practitioner, funeral home director, coroner, medical examiner, emergency medical technician, acupuncturist, crisis line or hotline personnel, school personnel, educational advocates, truant officer, social worker, social services administrator, domestic violence program personnel, registered nurse, licensed practical nurse, director or staff assistant of nursery school, or child day care center, recreational program or facility personnel, law enforcement officer, registered psychologist or assistant thereto, psychiatrist, field personnel of Illinois government agencies, probation officer, foster parent, homemaker, or child care worker.

(15) Indiana: Ind. Code Ann. § 31-33-5-1 (Michie 1997): Mandatory reporting by any individual who has reason to believe that a child is a victim of abuse or neglect.

(16) Iowa: Iowa Code Ann. § 232.69 (West Supp. 1998): Mandatory reporting by any health care practitioner, social worker, employee or operator of a health care facility, psychologist, school employee, employee or operator of child care facility, employee of the department of human services, employee of a substance abuse program, employee of a juvenile detention center, employee of a foster care facility, peace officer, dental hygienist, counselor, or mental health professional. Iowa Code Ann. § 232.74 does not mention attorney-client privilege.

(17) Kansas: Kan. Stat. Ann. § 38-1522 (Supp. 1998): Mandatory reporting by persons licensed to practice the healing arts, dentistry, or optometry, licensed psychologists, licensed practical nurses, teachers, school administrator, officers of medical care facilities, marriage and family therapists, child care providers, social workers, firefighters, emergency medical services personnel, mediators, juvenile officers, and law enforcement officers. Kan. Stat. Ann. § 38-1554 does not mention attorney-client privilege.

(18) Kentucky: Ky. Rev. Stat. Ann. § 620.030 (Michie 1990): Mandatory reporting by any person, including but not limited to, physician, osteopathic physician, nurse, teacher, school personnel, social worker, coroner, medical examiner, child-caring personnel, resident, intern, chiropractor, dentist, optometrist, emergency medical technician, paramedic, health professional, mental health professional, or peace officer. Ky. Rev. Stat. Ann. § 620.050 specifically preserves the attorney-client privilege.

(19) Louisiana: La. Children’s Code Ann. art. 603 (1995): Mandatory reporting by health practitioner, mental health/social service practitioner, teaching or child care provider, police officer or law enforcement official, or commercial film and photographic print processor.

(20) Maine: Me. Rev. Stat. Ann. tit. 22, § 4011 (Supp. 1997): Mandatory reporting by medical or osteopathic physician, resident, intern, emergency medical services person, medical examiner, physician’s assistant, dentist, dental hygienist, dental assistant, chiropractor, podiatrist, registered or licensed practical nurse, teacher, guidance counselor, school official, social worker, court appointed special advocate, guardian ad litem, homemaker, home health aide, medical or social service worker, psychologist, child care personnel, mental health professional, law enforcement official, state fire inspector, municipal code enforcement official, municipal fire inspector, commercial film and print processor, and clergy member (except when received as the result of confession). Me. Rev. Stat. Ann. tit. 22, § 4015 does not mention attorney-client privilege.

(21) Maryland: Md. Code Ann., Family Law § 5-704 (Supp. 1997): Mandatory reporting by any health practitioner, police officer, educator, or human service worker.

(22) Massachusetts: Mass. Gen. Laws Ann. ch. 119, § 51A (West Supp. 1998): Mandatory reporting by any physician, medical intern, hospital personnel, medical examiner, psychologist, emergency medical technician, dentist, nurse, chiropractor, podiatrist, optometrist, osteopath, public or private school teacher, educational administrator, guidance or family counselor, day care worker, any person paid to care for or work with a child in any public or private facility or home program, probation officer, clerk/magistrate of the district court, parole officer, social worker, foster parent, fire fighter, policeman, office for children licensor, school attendance officer, allied mental health and human services professional, drug and alcoholism counselor, psychiatrist, clinical social worker.

(23) Michigan: Mich. Comp. Laws § 722.623 (West Supp. 1998); Mich. Stat. Ann. § 25.248(3) (Law. Co-op. 1992 & Supp. 1998): Mandatory reporting by physician, coronor, dentist, registered dental hygienist, medical examiner, nurse, person licensed to provide emergency medical care, audiologist, pychologist, marriage and family therapist, licensed professional counselor, certified social worker, social worker, social work technician, school administrator, school counselor or teacher, law enforcement officer, or regulated child care provider. No privilege other than the attorney-client privilege will constitute grounds for failure to report.

(24) Minnesota: Minn. Stat. Ann. § 626.556(3) (West Supp. 1998): Mandatory reporting by any person who practices the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, or law enforcement, or member of the clergy who is performing ministerial as opposed to confessional duties.

(25) Mississippi: Miss. Code Ann. § 43-21-353 (Supp. 1997): Mandatory reporting by any attorney, physician, dentist, inter, resident, nurse, psychologist, social worker, child care giver, minister, law enforcement officer, public or private school employee. No exception based on attorney-client privilege.

(26) Missouri: Mo. Ann. Stat. § 210.115 (West 1996): Mandatory reporting by any physician, medical examiner, coronoer, dentist, chiropractor, optometrist, podiatrist, resident, intern, nurse, hospital or clinic personnel, any other health practitioner, psychologist, mental health professional, social worker, day care center worker, child care worker, juvenile officer, probation or parole officer, teacher, principal, Christian Science practitioner, peace officer or law enforcement official, or other person with the responsibility for children.

(27) Montana: Mont. Code Ann. § 41-3-201(2) (1997): Mandatory reporting by physician, resident, intern, member of hospital staff, nurse, osteopath, chiropractor, podiatrist, medical examiner, coroner, dentist, optometrist, health or mental health professional, Christian Science practitioner, school teacher, school official, social worker, operator or employee of day care center, foster care, residential care, or institutional worker, peace officer, clergy (if information obtained not from confession), guardian ad litem or court appointed advocated who is authorized to investigate a report of abuse or neglect. No mention of attorney-client privilege.

(28) Nebraska: Neb. Rev. Stat. § 28-711 (1995): Mandatory reporting by phsycian, medical institution, nurse, school employee, social worker, or other person who has reason to believe that a child has been abused or neglected. Nev. Rev. Stat. § 28-714 does not mention attorney-client privilege.

(29) Nevada: Nev. Rev. Stat. Ann. § 432B.220 (Michie 1996): Mandatory reporting by physician, dentist, dental hygienist, chiropractor, optometrist, podiatrist, medical examiner, resident, intern, nurse, phsycian’s assitant, psychiatrist, psychologist, marriage and family therapist, substance abuse counselor, advanced emergency medical technician, hospital personnel, coronor, clergyman, Christian Science practitioner (except if knowledge comes from confession), social worker or administrator, teacher, school counselor, school librarian, operator or employee of child care facility, foster home operator, law enfocement personnel, or an attorney (unless he has knowledge of abuse from a client who is or may be accused of abuse or neglect).

(30) New Hampshire: N.H. Rev. Stat. Ann. § 169-C:29 (1994): Mandatory reporting by any physician, surgeon, county medical examiner, psychiatrist, resident, intern, dentist, osteopath, optometrist, chiropractor, psychologist, therapist, registered nurse, hospital personnel, Christian Science practitioner, teacher, school official, school nurse, school counselor, social worker, day care worker, child or foster care worker, law enforcement official, priest, minister, rabbi, or any other person having reason to suspect that a child has been abused or neglected. N.H. Rev. Stat. Ann. § 169-C:32 specifically preserves attorney-client privilege.

(31) New Jersey: N.J. Stat. Ann. § 9:6-8.10 (West 1993): Mandatory reporting by any person having reasonable cause to believe that a child has been subjected to child abuse. The attorney-client privilege is preserved.

(32) New Mexico: N.M. Stat. Ann. § 32A-4-3 (Michie Supp. 1998): Mandatory reporting by any person, including but not limited to physicians, law enforcement officers, judges, nurses, teachers, and social workers, who knows or has reason to know that a child is abused or neglected. N.M. Stat. Ann. § 32A-4-5 provides that a report shall not be inadmissible because of physician-patient privilege "or similar privilege or rule against disclosure."

(33) New York: N.Y. Soc. Serv. Law § 413 (McKinney Supp. 1998): Mandatory reporting by any physician, registered physician assistant, surgeon, medical examiner, coronoer, dentist, dental hygienist, osteopath, optometrist, chiropractor, podiatrst, resident, intern, psychologist, registered nurse, hospital personnle, Christian Science practitioner, school offical social services worker, day care worker, mental health professional, substance abuse counselor, alcoholism counselor, peace officer, police officer, district attorney, assistant district attorney, investigator employed by the district attorney’s office, or other law enforcement official.

(34) North Carolina: N.C. Gen. Stat. § 7A-543 (1995): Mandatory reporting by any person who has cause to suspect that a child is abused. No exception for attorneys stated.

(35) North Dakota: N.D. Cent. Code § 50-25.1-03 (Supp. 1997): Mandatory reporting by any physician, nurse, dentist, optometrist, medical examiner, coroner, medical or mental health professional, religious practitioner of healing arts, schoolteacher or administrator, school counselor, addiction counselor, social worker, day care center worker, police or law enforcement officer, or member of clergy (except of knowledge comes from confession).

(36) Ohio: Ohio Rev. Code Ann. § 2151.421 (Anderson Supp. 1997): Mandatory reporting by an attorney, physician, dentist, podiatrist, practitioner of a limited branch of medicine, registered nurse, licensed practical nurse, visiting nurse, other health care professional, licensed psychologist, licensed school psychologist, speech patholigist, audiologist, coronoer, administrator or employee of day care center or child care agency, school teacher, school employee, school authority, person engaged in social work, or person rendering spiritual treatment through prayer. An attorney, however, is not required to make a report concerning any communication as the result of an attorney-client relationship.

(37) Oklahoma: Okla. Stat. Ann. tit. 10, § 7103 (1998): Mandatory reporting by any phsycian or surgeon, nurse, teacher, or any other person who has reason to believe that a child is abused or neglected. No privilege or contract shall relieve any person from the reporting requirement.

(38) Oregon: Or. Rev. Stat. § 419B.005, § 419B.010 (1995): Mandatory reporting by any public or private official having reason to believe that a child has suffered abuse. Public or private official is defined as any physician, dentist, school employee, nurse, employee of DHR, peace officer, psychologist, clergyman, licensed clinical social worker, optometrist, chiropractor, day care provider, attorney, naturopathic physician, licensed provessional counselor, licensed marriage and family therapist, and firefighter or emergency medical technician. Or. Rev. Stat. § 419B.010(1) provides, however, that an attorney shall not be required to report such information communicated by a person if the communication is privileged.

(39) Pennsylvania: 23 Pa. Cons. Stat. § 6311 (Supp. 1998): Mandatory reporting by persons who, in the course of their employment, occupation or practice of their profession, come into contact with children. Moreover, the privileged communication between any professional person required to report and the patient or client of that person shall not apply. Persons required to report include, but are not limited to, any licensed physician, osteopath, medical examiner, coronor, funeral director, dentist, optometrist, chiropractor, podiatrist, intern, registered nurse, licensed practical nurse, hospital personnel, Christian Science practitioner, member of the clergy, school administrator, school nurse, school teacher, social services worker, day care worker, mental health professional, peace officer or law enforcement official.

(40) Rhode Island: R.I. Gen. Laws § 40-11-3 (1997): Mandatory reporting by any person who has reasonable cause to know or suspect that any child has been abused or neglected. R.I. Gen. Laws § 40-11-11, however, provides that attorney-client privilege constitutes an excuse for failure to report.

(41) South Carolina: S.C. Code Ann. § 20-7-510 (Law Co-op. Supp. 1997): Mandatory reporting by any physician, nurse, dentist, optometrist, medical examiner, coroner, or any other medical, emergency medical services, mental health professiona, Christian Science practitioner, religious healer, school teacher, counselor, principal, assistant principal, social or public assitance worker, substance abuse treatment staff, child care worker, police or law enforcement officer, undertaker, funeral home director, person responsible for processing film, or any judge. S.C. Code Ann. § 20-7-550 specifically provides that the priileged quality of a communication is abrogated for purposes of the reporting statute, except between an attorney and client and between a priest and penitent.

(42) South Dakota: S.D. Codified Laws § 26-8A-3 (Michie Supp. 1998): Mandatory reporting by any physician, dentist, doctor of osteopathy, chiropractor, optometrist, mental health professional or counselor, podiatrist, psychologist, religious healing practitioner, social worker, hospital intern or resident, parole or court services officer, law enforcement officer, teacher, school counselor, school official, nurse, licensed or registered child welfare provider, employee or volunterr of a domestic abuse shelter, chemical dependency counselor, or coroner. S.D. Codified Laws § 26-8A-15 does not mention attorney-client privilege.

(43) Tennessee: Tenn. Code Ann. § 37-1-403 (1996): Mandatory reporting by any person, including but not limited to, any physician, osteopathic physician, medical examiner, chiropractor, nurse, hospital personnel, health or mental health professional, spiritual healer, school teacher or other school official or personnel, judge of any court of the state, social worker, day care center worker, professional child care worker, foster care worker, law enforcement officer, neighbor, relative, friend of any other person. Tenn. Code Ann. § 37-1-614 provides that privilege does not apply, except as to between an attorney and client.

(44) Texas: Tex. Fam. Code § 261.101 (West Supp. 1998): Mandatory reporting by a person having cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse. The requirement to report applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, member of the clergy, medical practitioner, social worker, or mental health professional.

(45) Utah: Utah Code Ann. § 62A-4a-403(1) (1997): Mandatory reporting by any person who has reason to believe that a child has been abused or neglected. An exception is made for a clergyman or priest. No exception is stated for an attorney.

(46) Vermont: Vt. Stat. Ann. tit. 33, § 4913 (Supp. 1997): Mandatory reporting by any physician, surgeon, osteopath, chiropractor, physician’s assitant, resident, intern, hospital administrator, nurse, medical examiner, dentist, psychologist, any health care provider, school superintendent, shcool teacher, school librarian, day care worker, school principal, school guidance counselor, mental health professional, social worker, probation officer, police officer, camp owner, camp administrator, or camp counselor.

(47) Virginia: Va. Code Ann. § 63.1-248.3 (1995): Mandatory reporting by any person licensed to practice medicine or any of the healing arts, any hospital intern, resident, nurse, social worker, probation officer, teacher or school employee, child care provider, Christian Science practitioner, mental health professional, law enforcement officer, mediator eligible to receive court referrals, any professional staff person of a facility to which children have been placed for care, any person associated with or employed by any private organization responsible for the care, custody, or control of children.

(48) Washington: Wash. Rev. Code Ann. § 26.44.030(1)(a) (West 1997): Mandatory reporting by any coronoer, medical examiner, law enforcement officer, professional school personnel, nurse, social service counselor, psychologist, pharmacist, child care provider, juvenile probation officer, department of corrections personnel, or any adult relative to a child who lives with that adult.

(49) West Virginia: W. Va. Code Ann. § 49-6A-2 (1996): Mandatory reporting by medical, dental or mental health professional, Christian Science practitioner, religious healer, school teacher or other school personnel, social service worker, child care or foster care worker, emergency medical services personnel, peace officer or law enforcement official, member of the clergy, circuit court judge, family law master or magistrate.

(50) Wisconsin: Wis. Stat. Ann. § 48.981 (1997): Mandatory reporting by a physician, coroner, medical examiner, nurse, dentist, chiropractor, optometrist, acupuncturist, other meidcal or mental health professional, social worker, marriage and family therapist, professional counselor, public assistance worker, school teacher or administrator, mediator, child care worker, day care provider, alcohol or substance abuse counselor, physical therapist, occupational therapist, dietician, speech language pathologist, audiologist, emergency medical technician, or law enforcement officer. An attorney may make a report but is not required to.

(51) Wyoming: Wyo. Stat. Ann. § 14-3-205(a) (Michie 1997): Mandatory reporting by any person who knows or has reasonable cause to believe or suspect that a child has been abused or neglected. Wyo. Stat. Ann. § 14-3-210 provides that evidence of abuse may be excluded on the basis of attorney-client privilege.

The courts have had little trouble holding that where the above statutes carve out an exception to other common law privileges, such exceptions will be upheld on the basis of the public policy of protecting children. E.g., Searcy v. Auerbach, 980 F.22d 909 (9^th Cir. 1992). Thus, the statutes have survived attacks on the basis of compelling disclosure of communcations that would be privileged under the doctor-patient privilege. E.g., In re Baby X, 97 Mich. App. 11, 293 N.W.2d 736 (1980); State ex rel. D.M. v. Hoester, 681 S.W.2d 449 (Mo. 1984); People v. Gearhart, 148 Misc. 2d 249, 560 N.Y.S.2d 247 (Crim. Ct. 1990). See generally Annotation, Validity, Construction, and Application of Statute Limiting Physician-Patient Privilege in Judicial Proceedings Relating to Child Abuse or Neglect, 44 A.L.R.4th 649 (19xx). Courts have also upheld the abrogation of the priest-penitent privilege, despite challenges on first amendment grounds. E.g., Church v. Jesus Christ of Latter-Day Saints v. Superior Court, 159 Ariz. 24, 764 P.2d 759 (Ct. App. 1988). See generally, Raymond C. O’Brien and Michael T. Flannery, The Pending Gauntlet to Free Exercise: Mandating That Clergy Report Child Abuse, 25 Loy. L. A. Rev. 1 (1991); William A. Cole, Religious Confidentiality and the Reporting of Child Abuse: A Statutory and Constitutional Analysis, 21 Colum. J. L. & Soc. Probs. 1 (1987); Mary Harter Mitchell, Must Clergy Tell? Child Abuse Reporting Requirements Versus Clergy Privilege and Free Exercise of Religion, 71 Minn. L. Rev. 723 (1987).

For similar reasons, the courts have held that the statutes can abrogate the marital communications privilege, Brown v. State, 588 So. 2d 551 (Ala. App. 1991); Commonwealth v. Boarman, 610 S.W.2d 922 (Ky. 1980); the psychologist-patient privilege, Bradley v. Ray, 904 S.W.2d 302 (Mo. Ct. App. 1995); the psychotherapist-patient privilege, Fewell v. Besner, 444 Pa. Super. 559, 664 A.2d 577 (1995); and the social worker-client privilege. People v. McKean, 94 Ill. App. 3d 502, 418 N.E.2d 1130 (1981).

The various ethics committess and courts have not, however, been so willing to compel attorneys to report child abuse in breach of ethical rules on confidentiality or to abrogate the attorney-client privilege. See generally Howard Davidson, Reporting Suspicions of Child Abuse: What Must a Family Lawyer Do?, 17 Fam. Advoc. No. 3 at 50 (Winter 1995); Robert P. Mosteller, Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant, 42 Duke L.J. 203 (1992); Nancy E. Stuart, Note, Child Abuse Reporting: A Challenge to Attorney-Client Confidentiality, 1 Geo. J. Legal Ethics 243 (1987); see also, Ruth F. Thurman, Client Incest and the Lawyer’s Duty of Confidentiality (American Bar Association Center for Professional Responsibility 1983).

Rule 1.6 of the Model Rules of Professional Conduct provides that a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm. Rule 1.8 of the Model Rules of Professional Conduct further provides that a lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation. DR 4-101 of the Model Code of Professional Responsibility provides that a lawyer may not reveal the confidences of the client except with the permission of the client.

The principle of lawyer-client confidentiality has often been cited as a "cornerstone of legal ethics." Wigmore states that the principle was already well established at the time of the reign of Elizabeth I. 8 James Wigmore, Evidence § 2290 (McNaughton rev. 1961). See also Restatement of the Law Governing Lawyers, Tent. Draft No. 3, § 112 (1990). The United States Supreme Court stated that the privilege is one of the "oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). See generally Geoffrey C. Hazard, Jr., An Historical Perspective on the Attorney-Client Privilege, 66 Calif. L. Rev. 1061 (1978).

Time and time again, the courts have stated that confidentiality facilitates the fact-finding process that is critical to representation and the proper functioning of our adversary system of justice. United States v. Zolin, 491 U.S. 554, 562 (1989). The rule encourages the client to communicate frankly and fully with the lawyer, even as to embarassing or legally damaging matter. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Indeed, this was stated most recently by the United States Supreme Court in Swidler & Berlin v. United States, 1998.SCT.127 <http://www.versuslaw.com> (United States Supreme Court, June 25, 1998). In that case, in opining upon whether the attorney-client privilege survives the death of the client, the Court stated, "The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. The systematic benefits of the privilege are commonly understood to outweight the harm caused by excluding critical evidence."

A recognized exception to this rule of confidentiality is the "crime/fraud exception": an attorney’s services cannot be used to further a crime in the future. As stated by the Supreme Court, "The privilege takes flight if the relationship is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told." Clark v. United States, 289 U.S. 1, 14 (1933). The applicability of the crime/fraud exception has particular relevance in child abuse cases, since child abuse is usually a pattern of conduct rather than one incident. See Lita Furby, Sex Offender Recidivism: A Review, 105 Psychological Bull. 3 (1989). Thus, as further discussed below, an attorney may report child abuse under the child abuse reporting statutes if the attorney reasonably believes the abuse will occur again. See generally, Wisconsin State Bar Committee on Professional Ethics, Formal Opinion E-89-9 (May 24, 1989) (construing generally the requirement to reveal information that a client will commit a crime).

As to past conduct by a client, the rule of confidentiality has also traditionally given way in the face of a court order requiring disclosure. The Code of Professional Responsibility, DR 4-101(C), and the Restatement of the Law Governing Lawyers, Tent. Draft No. 3, § 115 (1990), both allow disclosure of confidential information without violation of ethical responsibilities in the face of an order mandating such disclosure. The Model Rules, however, contain no such exception to confidentiality. Nonetheless, at least one court has held that a court order requiring an attorney to divulge the whereabouts of a client who had kidnapped his child did not violate the attorney’s duty to maintain confidences. In re Marriage of Decker, 153 Ill. 2d 298, 606 N.E.2d 1094 (1992). Cf. Lamare v. Basbanes, 418 Mass. 274, 636 N.E.2d 218 (1994) (attorney had no duty to adverse party to prevent creating situation, i.e., visitation, that "allowed" father to abduct children). The more difficult question is whether a law, as opposed to a court order, that requires disclosure can mandate that an attorney divulge the confidences of the client.

Thus we are faced with two overlapping questions. First, does the crime/fraud exception to maintaining confidences mandate that an attorney report child abuse on the theory that abuse will occur again in the future? Second, do statutes that mandate that an attorney report child abuse supersede the rule of confidentiality as to past crimes or conduct?

As noted above, an attorney does not have to maintain client confidences if such confidences are made in pursuit of a future crime. This principle was applied in the Cleveland Bar Association Professional Ethics Committee, Opinion 92-2 (July 7, 1992). In that case, the lawyer represented a woman seeking a divorce. The woman showed the lawyer evidence that her husband had abused both her and the couple’s son. The woman then returned to the marital home with her son. The Ethics Committee noted that the lawyer was not required to report the past abuse under the Ohio statute, since he obtained knowledge of the abuse as the result of the attorney-client relationship. The Commitee further noted, however, that a lawyer can reveal information necessary to prevent a crime if the client intends to commit a crime. The fact of the woman returning to the marital home, where she was exposing her son to further possible abuse, could be a crime under Ohio Rev. Code § 2919.22(A). Therefore, if the lawyer reasonably believed that his client would be breaking the law by bringing her child back into the marital home where abuse has occurred and will likely occur, then the lawyer would be permitted to report any confidences or secrets in order to prevent the crime of child endangerment.

The Cleveland opinion stated that the attorney may report abuse to prevent future endangerment to a child. Accord Maryland State Bar Association Committee on Ethics, Opinion 83-60 (April 23, 1983); Massachusetts Bar Association Committee on Professional Ethics, Opinion 90-2 (June 15, 1990); New Jersey Advisory Committee on Professional Ethics, Opinion 280 (undated, 1974); North Carolina State Bar Ethics Committee, Opinion RPC 120 (July 17, 1992); Wisconsin State Bar Ethics Committee, Opinion E-88-11 (December 7, 1988). Some opinions have stated that an attorney must report abuse to prevent future endangerment to a child. In Virginia State Bar Ethics Committee, in its Opinion 705 (June 26, 1985), the Committee opined that a lawyer does not have a duty to report to a social service agency any information he received from a client about possible child abuse by the client’s spouse, unless the client’s failure to disclose the alleged child abuse amounts to a crime. In essence, the Committee was saying that the lawyer cannot help the client commit a crime by failing to report the abuse. Accord Indianapolis Bar Association Legal Ethics Committee, Opinion 1-1986 (April 26, 1986) (a client’s revelation of past child abuse does not permit an attorney to report such abuse; as to suspicisons of future abuse, however, the attorney must report such suspicions).

Whether an attorney has a duty to report past incidents of child abuse by the client presents the greatest problem for the courts and ethics committees, and the result will usually depend on the scope of the reporting statute. North Carolina Ethics Committee, Opinion 175 (January 13, 1995), stated that a lawyer who has reason to suspect child abuse or neglect may report the abuse or neglect to the department of social services even if this information is confidential and even if reporting may result in substantial harm to the client. The lawyer may decide not to report the abuse or neglect and not be in violation of the ethical rules, but if the lawyer decides not to report the abuse or neglect, the lawyer will be in violation of the reporting statute and criminally liable. This is because the North Carolina statute mandates reporting by any person who has reasonable cause to suspect abuse or neglect.

Similarly, in Morris v. State, 833 S.W.2d 624 (Tex. Ct. App. 1992), the court held that attorneys must report to the appropriate agency knowledge or reasonable beliefs as to child abuse or neglect, because the statute mandates such reporting.

On the other hand, Opinion of the Attorney General of Maryland No. 95-80 (August 4, 1995) stated that the attorney-client privilege would exempt an attorney from reporting child abuse. This is because the Maryland statutes requires reporting only be a specifically defined class of persons.

In a recent ethics opinion that seems to conflict with another ethics opinion by the same body (see discussion immediately below), Utah State Bar Ethics Advisory Opinion Committee, Opinion 97-12 (January 23, 1998), the Committee stated that Utah lawyers are not ethically obligated to report child abuse by a client, despite a statute that requires such information be given to law enforcement authorities. The Committee did take pains to note that its opinion related only to an attorney’s ethical duty, not his legal liability under the statute.

The conclusion that one must draw from these opinions is that the attorney must take pains to recognize that the duty to report under the criminal law and the ethical duty to report are not contiguous; that an attorney may be under a duty to report under the criminal law, but not necessarily under the same ethical duty. Moreover, where an attorney is under a duty to report under a criminal statute, no ethics opinion has stated that reporting abuse is a violation of ethical rules. Rather, in such a situation, an attorney may or may not report abuse under the ethical rules. Thus, an attorney’s safest course of action would be to favor disclosure, since an attorney does not want to end up in jail.

The cases and ethics opinions are also split as to whether an attorney must report child abuse by one other than a client. Again, the results seem to turn on the scope of the statute. In Utah State Bar Ethics Advisory Opinion Committee, Opinion 95-6 (July 28, 1995), the Committee opined that when a lawyer who is representing a client learns that a non-client has abused a child, the lawyer may report the abuse over the client’s objections if the lawyer believes that making the report is required by law. In Utah, it would be required by law.

On the other hand, Association of the Bar of the City of New York Committee on Professional and Judicial Ethics, Opinion 1997-2 (August 21, 1997), stated that where an attorney for a social services organization learns that the minor client has been abused by a non-client, the attorney need not report the abuse if the client instructs the attorney not to report the abuse, because the report is not required by law. The lawyer is free, however, to consider whether the client has sufficient decision-making capacity to validly instruct the attorney not to make the report.

The most dramatic example of the duty of an attorney not to make a report because of the client’s instructions is contained in in re Pressly, 160 Vt. 319, 628 A.2d 927 (1993). In that case, the court held that an attorney cannot reveal a client’s suspicions that her spouse abused the couple’s child if the client specifically instructs attorney not to do so. The result was reached, in part, on the basis that in Vermont, the attorney’s report was not required by law. Query whether the court should have considered, as did Cleveland Bar Association Professional Ethics Committee, Opinion 92-2 (July 7, 1992), the possibility that the client was endangering the child and thus the attorney was aiding the client in the commission of a crime.

No one can argue that child abuse is a tragic societal problem. Reporting of child abuse by an attorney, however, should only be mandated when the attorney has reason to believe that the abuse will continue in the future. Any other reporting requirement undercuts a tradition of attorney-client privilege and preservation of client confidences that is older than our common law.

Laura W. Morgan is a Senior Attorney in Family Law at the National Legal Research Group, in Charlottesville, Virginia, a firm that writes memoranda and briefs for attorneys nationwide. Ms. Morgan is the author of "Child Support Guidelines: Interpretation and Application," and is currently Chair of the Child Support Committee of the American Bar Association Family Law Section. She can be reached at: goddess@supportguidelines.com, or phone 1-800-727-6574 or 1-804-977-5690

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