A Pennsylvania task force has recommended that attorneys be added to the state’s list of mandatory child abuse reporters as long as the attorney-client privilege remains intact. The task force made several other recommendations that it hopes will overhaul the state’s child-protection procedures.
“[A] number of our recommendations attempt to compensate for human frailty, balance responsibilities, and build in means for holding the various players in this process accountable for the ways in which they do their work,” the task force’s report said.
The commonwealth appointed the Task Force on Child Protection in part as a response to revelations that some people knew Pennsylvania State University football coach Jerry Sandusky had sexually assaulted children for years but did not report him to the authorities and were not legally required to do so. In addition to adding attorneys as mandatory reporters, the group wants to eliminate separate standards that are in place for coaches as compared to teachers, making all of them mandatory reporters. The task force also wants to include people who accept responsibility for children in programs and activities, social service workers, law enforcement officers, librarians, emergency medical services providers, film processors, IT personnel, and employees or independent contractors of mandated reporters.
The American Bar Association Model Rules of Professional Conduct say that lawyers may violate attorney-client confidentiality only in limited situations, including when it is necessary to “prevent reasonably certain death or substantial bodily harm” if the harm will “be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date.”
Nevertheless, according to the Department of Health and Human Services, 18 states require any person who suspects child abuse or neglect to report it to authorities. Most states have an exception for attorney-client communications, but New Mexico, Oklahoma, and Utah require reporting no matter how the attorney learned of the abuse. North Carolina and Texas have an exception for attorney-client communications only if the case is an abuse or neglect case. Pennsylvania’s law, if passed, would allow an exception “with respect to confidential communications made to an attorney” that are protected by state law.
Family law attorney Timothy Conlon, of Providence, R.I., said that making attorneys mandatory reporters is the best way to protect children, as long as an attorney’s duty to the client is not compromised.
“If a lawyer isn’t required to report suspected abuse, the system will never know about it. So requiring lawyers to put the information they get from nonclients into the system is a good idea,” he said. “But there has to be an exception for attorney-client communications because otherwise it would pervert a person’s ability to even consult a lawyer. A client has to have an open conversation with an attorney without worrying [the attorney’s] going to drop the dime on him.”
Conlon points out that family law attorneys often learn of abuse through third parties—the children themselves, spouses, and neighbors or friends—which would not be privileged in mandatory-reporting states. Attorneys should tell clients at the outset that if they learn any information that indicates child abuse, they will have to report it.