Through the Looking Glass in Indiana: Mandatory Reporting of Child Abuse and the Duty of Confidentiality

Abstract

It is often said that the duty of confidentiality is the most important of all the fiduciary duties attorneys owe their clients. This is so because without confidentiality, clients would presumably not feel free to seek legal representation, or, at least, would not be fully open to speak out with their lawyers. Yet, the duty of confidentiality can be affected by special statutes that impose the opposite duty: a duty to disclose information under certain circumstances. Most common among this type of statutes are state statutes that mandate disclosure of information related to child abuse. As one might expect, therefore, there may be circumstances in which a lawyer may find a conflict between the duty to keep information secret and a duty to disclose it. Last fall, the Legal Ethics Committee of the Indiana State Bar Association issued an opinion addressing this very question. It concludes that under Indiana law, absent client consent, an attorney may not report information about suspected child abuse learned during the representation of the client unless the lawyer believes disclosing the information is necessary to prevent reasonably certain death or substantial bodily harm. In reaching this conclusion, however, the Committee disregards the text of the applicable rule of professional conduct and does not consider the possible scenarios that can result from the interpretation of the mandatory disclosure statute, the doctrine of the attorney-client privilege and the rules of professional conduct. In an effort to clarify the confusion created by the opinion, this essay explains the issue presented by the opinion, and suggests the analysis needed for its proper resolution according to the applicable rules of professional conduct.