Ethics Opinion 282
Duties of Lawyer Employing a Social Worker Who Is Obligated to Report Child Abuse
A lawyer who engages a social worker to provide services in connection with the representation of a client must inform the client that the social worker may be obligated under law to report suspected child abuse or neglect. The lawyer should inform the client that while the Rules of Professional Conduct require the lawyer to assure that persons employed by the lawyer in the representation of a client preserve client secrets and confidences, other laws may require the social worker to report child abuse or neglect.
- Rule 1.6 (Confidentiality of Information)
- Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants)
An association of social workers seeks guidance regarding the obligations of a social worker employed by or consulting with a lawyer in the representation of a client where the social worker receives information that the client has engaged in child abuse. Under D.C. Code § 2-1352, social workers and certain other professionals who reasonably suspect that child abuse or neglect has taken place must “immediately” report the suspected abuse to the Metropolitan Police Department or to the Child Protective Services Division of the Department of Human Services.1 The statute makes clear that the social worker so obligated has no discretion to refuse to report once the social worker knows or has reasonable cause to suspect that child abuse or neglect has taken place. The statute does not include lawyers among those professionals required to report child abuse or neglect.2
Inquirer presents no specific facts or incidents out of which the inquiry arises. We assume that the social worker is either employed by or acting as a consultant to a lawyer or law firm in the course of its representation of a client. The inquiry also does not state whether the information about child abuse came directly from the client or from another source, but in our view the analysis does not change depending on the source of the information.
The Committee is limited to expressing opinions concerning lawyers’ ethics and therefore cannot decide the scope of the social worker’s obligations under the mandatory reporting law. We focus, first, on whether Rule 1.6 of the District of Columbia Rules of Professional Conduct (the “Rules”) authorizes a social worker employed by a lawyer to disclose client confidences and secrets and, second, the obligations of the lawyer employing the social worker.
As an employee of or consultant to a lawyer representing a client, the social worker is a nonlawyer assistant under Rule 5.3 in that the social worker “acts for the lawyer in rendition of the lawyer’s services.” Rule 5.3, Comment . Rule 5.3 requires the lawyer to assure that nonlawyer assistants understand and comply with the Rules of Professional Conduct. To assure that the nonlawyer assistant abides by the Rules, a partner in a law firm must put into “effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer.” Rule 5.3(a).
The failure to put these measures into effect, or allowing the nonlawyer assistant to violate the obligations imposed by the Rules, can result in discipline of a lawyer supervising the employee so long as the lawyer has knowledge of the conduct and fails to take action to avoid or mitigate the violation. Rule 5.3(c). Moreover, Rule 1.6(e) specifically requires a lawyer to exercise reasonable care to prevent employees, associates, and others working for the lawyer from disclosing or using confidences and secrets of a client unless the client consents or an exception applies.
One of those exceptions is contained in Rule 1.6(d)(2), which provides that the lawyer may reveal the confidences or secrets of a client when “required by law.” This provision continues practice under former Disciplinary Rule DR 4-101(C)(2) and follows a provision of the American Bar Association 1980 discussion draft of Model Rule 1.6, which was dropped from subsequent versions of the model rule by the ABA. During the drafting of Rule 1.6 in the District of Columbia, there was considerable debate concerning the scope of the exception to the lawyer’s duty to refrain from disclosing confidences and secrets to prevent harm to third parties. By contrast, the exception for disclosure obligations required by law received very little attention. The unqualified language of the exception, though, appears to recognize the authority of the legislature to subordinate the obligation to preserve client confidences and secrets to other social objectives.
Like the duty to preserve confidences and secrets, this exception extends to employees, associates and “others whose services are utilized by the lawyer.” Rule 1.6(e). They “may reveal information permitted to be disclosed by paragraphs (c) and (d).” Id. The question is whether this exception authorizes the social worker to reveal confidences and secrets pursuant to a law that does not apply to the lawyer.3 We conclude that it does not.
The exception in Rule 1.6(e) allowing persons employed by the lawyer to disclose confidences or secrets is strictly derivative of the exception for disclosures by the lawyer. That is, it is defined by referring to Rules 1.6(c) and (d), which contains exceptions to the lawyer’s obligation to keep client confidences and secrets. In other words, under Rule 1.6(e), client confidences and secrets can be disclosed by and employee only in circumstances where the lawyer may disclose. The Rule does not authorize disclosure of client confidences and secrets by an employee where the lawyer is prohibited from so disclosing.
We would reach a different conclusion if Rule 1.6(e) contained language authorizing an employee to disclose client confidences and secrets independently of the disclosure rules applicable to the employing lawyer. In the absence of such language, we conclude that in the circumstances presented here Rule 1.6(e) allows no exception to the duty to ensure that the social worker preserves the confidences and secrets of the lawyer’s client. We believe this interpretation of Rule 1.6 is consistent not only with its strict limitations on disclosures of client confidences and secrets but also with its recognition that lawyers require assistance of other professionals and lay people to represent their clients properly.
We acknowledge that this interpretation of Rule 1.6 creates a quandary both for the social worker and for the lawyer.4 The Rules of Professional Conduct cannot insulate a social worker from obligations otherwise imposed by law. Thus, the lawyer’s duty to exercise “reasonable care” to assure that employees do not disclose client confidences and secrets cannot include preventing the social worker from reporting child abuse or neglect as mandated by law.5 An alternative interpretation of Rule 1.6, though, would create the anomaly that the social worker working for the lawyer would be mandated to make disclosures that the lawyer is forbidden from making.
The one prior decision of the Committee interpreting Rule 1.6(d)(2) does not shed light on the question before us. In D.C. Bar Ethics Op. 219, a regulation of the U.S. Patent and Trademark Office required practitioners to reveal a fraud perpetrated on a “person” or “tribunal” during the course of the representation of the client, a disclosure that might otherwise be prohibited by Rule 3.3(d).6 We held that the exception for disclosures required by law applied, subject only to the additional requirement that the client be informed of the lawyer’s obligation and be given an opportunity to challenge the regulation. But that opinion concerned only an obligation to disclose placed directly on the lawyer, not on a person employed by the lawyer.
The inconsistent duties of the social worker and the lawyer—the social worker to report under the child abuse and neglect law, the lawyer to assure that confidences and secrets of a client are preserved—require that the lawyer take steps to assure that the client understands the inconsistency. See Rule 1.4(b).7 Before bringing a social worker into the representation, the lawyer should inform the client that the social worker may have a statutory duty to report child abuse or neglect that is inconsistent with the duty of both the lawyer and the social worker to preserve confidences and secrets imposed by the Rules of Professional Conduct. The lawyer should further explain that, as a result, the social worker may in fact report information supplied by the client or the lawyer to relevant authorities. It is then the client’s decision whether to proceed with the use of a social worker in the case.
It is also appropriate for the lawyer to inform the social worker of the lawyer’s obligations under Rule 1.6 to preserve confidences and secrets of the client and to assure that the social worker does the same. The lawyer should not, however, provide legal advice to the social worker regarding reporting obligations under the statute because the lawyer’s duty to the client to assure protection of confidences and secrets precludes giving any contrary opinion to the social worker. See Rule 1.7(a). Nor should the lawyer request that the social worker ignore the provisions of the law mandating reporting of child abuse or neglect.
The dilemma faced by the lawyer, the client, and the social worker is not easily resolved, and the Rules do not appear to have contemplated the situation we confront. Given the lack of clarity in the relationship between Rule 1.6 and laws mandating reporting of child abuse and neglect by certain professionals, the lawyer’s obligations under the circumstances discussed in this opinion are twofold: first, to inform his client of the possible implications of sharing information about child abuse or neglect with a social worker working for the lawyer; and second, to inform the social worker of the obligations imposed by Rule 1.16.
Inquiry No. 97-7-36
Adopted June 17, 1998
1. The statute triggers the reporting requirement when a covered person “knows or has reasonable cause to suspect that a child known to him or her in his or her professional or official capacity has been or is in immediate danger of being a mentally or physically abused or neglected child, as defined in § 16-2301(9). . . .” D.C. Code § 2-1352(a).
2. The class of persons required to report includes, in addition to a social worker, a physician, psychologist, medical examiner, chiropractor, dentist, registered nurse, licensed practical nurse, person involved in the care and treatment of patients, law-enforcement officer, school officer, teacher, social service worker, day care worker, and mental health professional. D.C. Code § 2-1352(b).
3. There may be circumstances where the lawyer may report child abuse under Rule 1.6(c)(1), but only where it amounts to “a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm absent disclosure of the client’s secrets or confidences by the lawyer.” The District of Columbia child abuse and neglect reporting requirement is far broader, both in referring to past acts and in using a lower threshold of harm to the child to trigger the reporting obligation.
4. The relationship between mandatory child-abuse reporting rules and the duty of confidentiality obligations has been the subject of considerable discussion. Rosencrantz, Rejecting “Hear No Evil, Speak No Evil:” Expanding the Attorney’s Role in Child Abuse Reporting, 8 Geo. J. L. Ethics 327 (Winter, 1995); Mosteller, Child Abuse Reporting Law and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant, 1992 Duke Law J. 203; Stuart, Child Abuse Reporting: A Challenge to Attorney-Client Confidentiality, 1 Geo. J. L. Ethics 243 (1987).
It is arguable that the social worker has no mandatory reporting obligation in these circumstances. A court might interpret D.C. Code § 2-1352 as excluding a social worker from mandatory reporting obligations when working for a lawyer. The legislative history of the Prevention of Child Abuse and Neglect Act of 1977 contains no discussion of the impact of the law on lawyers or on health professionals working for lawyers. The committee report states only that the statute is intended to apply to “a broad range of medical, educational, social service and law enforcement professionals.” Council of the District of Columbia, Report on Bill 2-48, March 30, 1977.
5. See also Rule 1.6, Comment , expressing a presumption against other laws superseding a lawyer’s obligation of confidentiality. Absent a judicial interpretation of the applicability of the statute to a social worker working for a lawyer, however, the lawyer must ensure that the client understands the potential inconsistency between the lawyer’s duty to protect the information and the social worker’s apparent statutory duty to report it.
6. Rule 3.3(d) provides that a lawyer need not disclose a fraud perpetrated by a client upon a tribunal where doing so “would require disclosure of information otherwise protected by Rule 1.6 . . .”
7. Rule 1.4(b) provides that “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”