Formal Opinion 1997-2: Confidentiality of information concerning child abuse or mistreatment; preservation of confidences within a social services agency; advanced consent to the disclosure of client confidences and secrets
TOPICS: Confidentiality of information concerning child abuse or mistreatment; preservation of confidences within a social services agency; advanced consent to the disclosure of client confidences and secrets
DIGEST: A lawyer employed by a social services agency generally must preserve confidences and secrets relating to the abuse or mistreatment of a minor client unless the client consents to disclosure. The lawyer may make disclosure without the minor client’s consent, however, if: (a) disclosure is required by law; (b) disclosure is necessary to protect the client from being killed or maimed by another; (c) disclosure is necessary to prevent the client from killing or maiming himself or another; or (d) the client is unable to make a reasoned decision about whether or not to make disclosure and the lawyer concludes upon analysis that disclosure would be in the client’s best interest. Without client consent, the lawyer may not disclose client confidences or secrets to others employed by the agency unless the lawyer determines that the agency employees would preserve the confidentiality of the disclosures. Subject to limitations, the minor client may consent in advance to the lawyer’s disclosure of information concerning abuse or mistreatment; however, the client is entitled to withdraw such consent thereafter.
CODE: Canons 4, 5, 6 & 7; DRs 2-110, 4-101 & 5-107(B); ECs 4-2, 4-7, 7-11 & 7-12.
The inquirer is a lawyer employed by a social services organization which provides a wide range of services to its minor clients ages twelve and older. These include health, mental health, educational and legal services. The organization employs social services workers, physicians, and others who are identified in Social Services Law section 413 as among those who are “required to report or cause a report to be made . . . when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or mistreated child . . ..” The inquirer asks how she should fulfill her obligations of confidentiality under the Code of Professional Responsibility in light of the reporting obligations of agency employees under Section 413. Among other things, she asks whether she or another staff member may apprise minor clients prior to undertaking the representation that the agency will not reveal the client’s confidences with the exceptions that the agency will report information that (a) the client is thinking of maiming or killing himself or another, or (b) that the client’s caretaker is abusing him or her. Further, she asks whether, if the minor consents in advance to these conditions, the lawyer may report information concerning abuse by the client’s caretaker if the lawyer later receives such information.
The inquiry raises both questions of law and questions calling for the interpretation of provisions of the Code of Professional Responsibility. Although this Committee’s mandate is limited to interpreting the Code, we will undertake to identify some of the legal questions implicated by the inquiry in order to provide a framework for the lawyer’s analysis.
We begin with some general principles. As a general rule, if the lawyer employed by a social service agency undertakes to represent a minor as a client, the lawyer must provide independent, zealous and competent representation and must preserve the client’s confidences in accordance with the provisions of the Code of Professional Responsibility. See, e.g., Canon 4 (“A Lawyer Should Preserve the Confidences and Secrets of a Client”); Canon 5 (“A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client”); Canon 6 (“A Lawyer Should Represent a Client Competently”); Canon 7 (“A Lawyer Should Represent a Client Zealously Within the Bounds of the Law”).
This is true notwithstanding that the lawyer is employed by, and thus compensated by, a social services agency. The lawyer must represent her clients with independent professional judgment. She may not allow the agency to direct or regulate her professional judgment in rendering legal services to clients. See DR 5-107(B) (“A lawyer shall not permit a person who . . . employs or pays the lawyer to render legal service for another to direct or regulate his or her professional judgment in rendering such legal services.”).
This is also true notwithstanding that the client is a minor. See N.Y. State 485 (1978) (Legal Aid lawyers may not divulge juvenile clients’ confidences to research institute without client consent). The Code recognizes that “[t]he responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client.” EC 7-11. Further, the client’s inability to make considered judgments “casts additional responsibilities on a lawyer.” EC 7-12. Nonetheless, the inquiring lawyer’s clients — namely, verbal minors ages twelve or older who affirmatively seek a lawyer’s assistance — generally will be capable of making considered judgments concerning the representation. See, e.g., Standards for Attorneys and Guardians Ad Litem in Custody or Visitation Proceedings sec. 2.2 (Am. Academy of Matrimonial Lawyers 1995) (recognizing a rebuttable presumption that children above the age of twelve are competent); Martin Guggenheim, The Right to be Represented but not Heard: Reflections on Legal Representation for Children, 59 N.Y.U. L. Rev. 76, 82-85 (1984); see also Katherine H. Federle, On the Road to Reconceiving Rights for Children: A Postfeminist Analysis of the Capacity Principle, 42 DePaul L. Rev. 983, 1011-15 (1993) (arguing that virtually all children who can articulate their desires should be deemed competent).
When minors are in fact capable of directing the representation, their lawyers owe them the duties of loyalty, zealous representation, competence and confidentiality that a lawyer would ordinarily owe to any client. As we discuss below, there may be occasions, however, when a client is not capable of making considered judgments concerning some or all aspects of the representation. As EC 7-12 recognizes, this may impose additional responsibilities on the lawyer. Even so, the lawyer maintains the ordinary duties to represent the client independently, competently and zealously. See generally Restatement (Third) of the Law Governing Lawyers [hereinafter “Restatement”] sec. 25(1) (Proposed Final Draft No. 1, March 29, 1996) (“When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority . . . or other cause, the lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship with the client . . ..”). Further, the lawyer continues to have a general obligation to preserve the client’s confidences and secrets. See generally, Recommendations of the Conference on Ethical Issues in the Legal Representation of Children [hereinafter “Recommendations”], 64 Fordham L. Rev. 1301, 1308 (1996) (“A lawyer representing a child should comply with the rules of professional conduct governing client confidentiality.”).
1. In the absence of consent, may the lawyer report suspected incidents of child abuse?
If the lawyer learns in the course of representing a minor client that the child may be mistreated or abused, the threshold question for the lawyer is whether that information is protected as a “confidence” or a “secret” under DR 4-101(B). “Confidences” include information protected by the attorney-client privilege; “secrets” include “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely to be detrimental to the client.” Taken together, confidences and secrets include “substantially all information gained in the professional relationship.” N.Y. State 528 (1981). However, a lawyer’s information about the client’s abuse or mistreatment is not invariably protected as a “confidence” or “secret”. For example, the rule ordinarily would not apply to information gained entirely outside the professional relationship. Likewise, at least under some circumstances, the rule would not apply to the lawyer’s observation of a physical condition (e.g., physical injury) that the client has generally exposed to the public. If the information is not a client confidence or secret, the lawyer generally need not keep it confidential.
If the lawyer concludes that the information is protected as a confidence or secret of the minor client, then as a general rule, it would be improper for the lawyer to disclose, without the client’s consent, information that the minor may be mistreated or abused. DR 4-101(B) (“Except when permitted under DR 4-101(C), a lawyer shall not knowingly . . . [r]eveal a confidence or secret of a client.”). This does not mean, however, that the lawyer may not seek the client’s consent. On the contrary, as a matter of competent representation, the lawyer would ordinarily be expected to discuss with the client whether or not the lawyer should report information that the client may be abused or mistreated. If the client subsequently authorizes the lawyer to do so, the lawyer may then report the suspected abuse or mistreatment, notwithstanding that the information would otherwise have been protected as a confidence or secret.
If the minor client does not agree that the lawyer may disclose information protected as a confidence or secret, however, the lawyer ordinarily would be required to comply with the client’s direction unless there is an applicable exception to the duty of confidentiality. Cf. Mass. Op. 93-6 (lawyer for 13-year-old child who is competent to make decisions must follow the child’s directions even if the course of action appears to be imprudent). Thus, if the client does not authorize the lawyer to disclose information concerning abuse or mistreatment, the lawyer must consider whether an exception to the general duty of confidentiality entitles the lawyer to override the client’s decision. See DR 4-101(C) (identifying conditions under which a lawyer may reveal confidences and secrets). We identify three possible exceptions below.
a. “Required by law” exception. One consideration is whether the lawyer is “required by law” to reveal the information pursuant to Section 413 or another legal mandate. Whether child abuse reporting laws apply to lawyers who learn about child abuse in the course of their professional work appears to vary from state to state. See generally Ann M. Haralambie, The Child’s Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases 36 (1993); Report of the Working Group on Confidentiality, 64 Fordham L. Rev. 1367, 1376 (1996); Emily Buss, “You’re My What?”: The Problem of Children’s Misperceptions of Their Lawyers’ Roles, 64 Fordham L. Rev. 1699, 1728 (1996);Gerard F. Glynn, Multidisciplinary Representation of Children: Conflicts Over Disclosures of Client Communications, 27 J. Marshall L. Rev. 617 (1994);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).
We note that Section 413 does not explicitly include lawyers among those who are required to report cases of suspected child abuse or mistreatment. Nonetheless, questions such as whether lawyers must generally report suspicions of child abuse or mistreatment under Section 413 or whether lawyers must do so in particular when they are employed by a social services agency are questions of law that are beyond this Committee’s jurisdiction. Likewise, questions such as whether a lawyer’s reporting obligation, if any, is “trumped” in particular cases by either the duty of confidentiality under DR 4-101 or by the attorney-client privilege are questions of law that we may not answer.
If the lawyer concludes that the law requires the lawyer to report suspected child abuse or mistreatment in certain classes of cases, the lawyer may make such a report when the law so requires. DR 4-101(C)(2). If the lawyer is not certain that he has a legal obligation to disclose otherwise confidential information, however, the lawyer should take available legal steps to seek clarification of the law before making disclosure. See, e.g., N.Y. State 645 (1992) (where it is uncertain whether lawyer who is member of town board must disclose client information under town’s ethics and disclosure law, lawyer must seek judicial determination before making such disclosure by, for example, commencing a declaratory judgment action or triggering legal action by filing a report with client confidences omitted); In re Advisory Opinion No. 544, 511 A.2d 609, 612 (N.J. 1986); Restatement, supra, sec. 115 (“A lawyer may use or disclose confidential client information when required by law, after the lawyer takes reasonably appropriate steps to assert that the information is privileged or otherwise protected against disclosure.”); cf. Recommendations, supra, 64 Fordham L. Rev. at 1317 (“A lawyer [serving a child] should seek to resolve uncertainties concerning the lawyer’s role, the identity of the client or clients, and the allocation of decisionmaking authority.”); see also ABA Model Rules of Professional Conduct, Rule 1.6 cmt. (“Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumption should exist against such supersession.”).
Further, the lawyer should ordinarily consider at the outset of the representation whether there may be a legal obligation to report information concerning child abuse or neglect in the course of a particular representation. If the lawyer concludes that there is or may be such an obligation, it would be prudent to advise the client (or potential client) at the outset of the representation when advising him or her about the lawyer’s duty of confidentiality. See, e.g., Recommendations, supra, 64 Fordham L. Rev. at 1308 (“A lawyer representing a child should explain in detail, in a manner understandable to the child, whether and to what extent the child’s communications will be kept in confidence.”)
b. If disclosure is necessary to save the client’s life. Although the lawyer may believe that the minor would be protected from physical and/or psychological harm if the suspected abuse or mistreatment were to be reported, and that the minor’s insistence on confidentiality is therefore contrary to the minor’s best interests, DR 4-101(C) does not generally authorize a lawyer to override the client’s decision on this basis.
Where a lawyer assumes the traditional attorney role in representing a child, the duty of confidentiality that is so central to the “normal client-lawyer relationship” surely applies. This means that, except to the extent other laws require disclosure, everything a child tells his lawyer about his own history of abuse or other parental misdeeds, as well as information gained from other sources, cannot be revealed unless the child client has consented, after a full discussion of the risks, to the disclosure.
Emily Buss, “You’re My What?”: The Problem of Children’s Misperceptions of Their Lawyers’ Roles, 64 Fordham L. Rev. 1699, 1726 (1996); see also Report of the Working Group on Confidentiality, 64 Fordham L. Rev. 1367, 1370 (1996)(“disclosure is clearly not permitted . . . simply because the child, through lack of judgment or understanding, places himself at risk”); see generally Monroe H. Freedman, The Life-Saving Exception to Confidentiality: Restating Law Without the Was, The Will Be, or the Ought to Be, 29 Loyola of Los Angeles L. Rev. 1631 (1996) (advocating exception to confidentiality “when and to the extent the lawyer reasonably believes necessary to prevent . . . death or serious bodily injury to a person” and describing historic opposition to such an exception).
Although DR 4-101(C) does not explicitly so provide, we believe that a lawyer has latitude to report information concerning child abuse or mistreatment in the rare case in which the lawyer honestly concludes, after full consideration, that disclosure is necessary to save the client from being killed or maimed. Cf. N.Y. State 486 (1978) (lawyer may disclose client’s threatened suicide); ABA 83-1500 (1983) (same); Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering sec. 1.6.304 (2d ed. Supp. 1993) (lawyer could under “moral compulsion” engage in “conscientious civil disobedience” against rule forbidding disclosure of information to save an innocent life); see also Code of Professional Responsibility, Preliminary Statement (“No codification of principles can expressly cover all situations that may arise.”). This exception would be appropriately invoked only in the most extreme cases, however. The lawyer would have to take care not to use this implied exception simply as a pretext for overriding what the lawyer considers to be a client’s bad judgment. Cf. Randi Mandelbaum, Rules of Confidentiality When Representing Children, 64 Fordham L. Rev. 2053, 2060 (1996) (noting that if lawyers were permitted to make disclosures to protect child clients from imminent death or substantial bodily harm, “[t]he risk of this being broadly interpreted and of a slippery slope toward disclosure is great”). Further, the disclosure “should be no greater than the lawyer reasonably believes necessary to the purpose.” EC 4-7.
c. Client incapacity. A third consideration is whether the particular client is capable of making a reasoned judgment as to whether or not the lawyer should report the possibility of mistreatment or abuse. Although most minors age twelve or older may be able to do so, not all can make such a reasoned judgment. See generally Report of the Working Group on Determining the Child’s Capacity to Make Decisions, 64 Fordham L. Rev. 1339 (1996); Peter Margulies, The Lawyer as Caregiver: Child Clients’ Competence in Context, 64 Fordham L. Rev. 1473 (1996). Some minors may be capable of making reasoned judgments about some aspects of the legal representation — including whether to be represented by counsel in the first place — but not about other aspects of the representation. See Restatement, supra, sec. 35 cmt. c (“Disabilities in making decisions vary . . .; they may impair a client’s ability to decide matters generally or only with respect to some decisions at some times”).
Ordinarily, the lawyer’s determination as to whether and to what extent the minor possesses or lacks capacity to direct the representation should be made at the outset of the representation in accordance with a principled analytic framework. See Recommendations, supra, 64 Fordham L. Rev. at 1312-13. The lawyer should not conclude that minors below a particular age are invariably unable to make reasoned decisions or that all verbal minors are invariably able to do so. When the minor’s decision-making capabilities are in issue, the lawyer must take account not only of information and impressions derived from the lawyer’s interview of the minor, but also of other relevant information that may reasonably be obtained, and the lawyer may in appropriate cases seek guidance from other professionals and concerned parties. See id.; Restatement, supra, sec. 35 cmt. d. Among the relevant considerations are the minor’s developmental stage (i.e., level of cognitive, social and emotional development), the minor’s ability to communicate with the lawyer and to articulate reasons for his decisions, the minor’s decision-making process (including whether the minor’s decision stems from social or familial pressure, whether the decision conforms with others decisions the minor has made, and whether the minor is consistent in his preference or frequently changes his mind), and the minor’s ability to understand the consequences of his decision including, where relevant, the risks of harm and the possible finality of the decision. See Recommendations, supra, 64 Fordham L. Rev. at 1313; Report of the Working Group on Determining the Child’s Capacity to Make Decisions, supra, 64 Fordham L. Rev. at 1342-45; Committee on Professional Responsibility, Association of the Bar of the City of New York, 52 The Record 34, 44 (1997). Further, the lawyer should not conclude merely from the fact that a decision appears to be a bad one that the client is not making a reasoned decision. See Restatement, supra, sec. 35 cmt. c (“Lawyers . . . should be careful not to construe as proof of disability a client’s insistence on a view of the client’s welfare that a lawyer considers unwise or otherwise at variance with the lawyer’s own views.”).
If the lawyer concludes that the minor lacks decisionmaking capacity, the lawyer must determine whether the representation may be undertaken or continued. Cf. Restatement, supra, sec. 35(4) (a lawyer representing an impaired client “may seek the appointment of a guardian or take other protective action within the scope of the representation when doing so is practical and will advance the client’s objectives or interests”); ABA 96-404 (1996) “When a client is unable to act adequately in his own interest, a lawyer may take protective action including seeking the appointment of a guardian. . . . The action should be the least restrictive of the client’s autonomy that will yet adequately protect the client in connection with the representation.”). If the lawyer has authority to represent the minor notwithstanding the child’s incapacity, then in the course of the representation the lawyer may make decisions, including those concerning confidentiality or disclosure, that the client cannot make in a reasoned way. Cf. N.Y. City 1987-7 (lawyer for incapacitated client may disclose confidential information to the court in seeking appointment of a conservator, but should seek court’s permission to do so in camera and under seal). If the lawyer anticipates making such decisions on behalf of the client, however, the lawyer should ordinarily so advise the client at the outset of the representation in the context of discussing client confidentiality. See Buss, supra, 64 Fordham L. Rev. at 1745.Thereafter, in deciding on behalf of the incapacitated client whether to report suspected child abuse or mistreatment, the lawyer should make a principled decision as to whether or not such disclosure would be in the client’s best interests. See Recommendations, supra, 64 Fordham L. Rev. at 1308-11; see generally Jean Koh Peters, The Roles and Content of Best Interests in Client-Directed Lawyering for Children in Child Protective Proceedings, 64 Fordham L. Rev. 1505 (1996). While the client’s desires may not be dispositive, they should be fully taken into account, as should the effect that overriding the client’s desires may have on the minor client and on the attorney-client relationship. Cf. Restatement, supra, sec. 35 cmt. c (“Even when the lawyer is empowered to make decisions for the client . . ., the lawyer should, if practical, communicate the proposed decision to the client so that the client will have the chance to comment, remonstrate, or seek help elsewhere.”). Although the client’s decision-making is impaired, a lawyer should not lightly disregard the client’s insistence that the lawyer keep his secrets.
2. If the lawyer may not report information concerning the minor client’s abuse or mistreatment, may the lawyer disclose this information to others within the agency?
Ordinarily, as necessary to render legal assistance, a lawyer may disclose client confidences and secrets to others within the lawyer’s office even without the client’s express consent. This is true because others within the lawyer’s office have a responsibility to keep the information confidential and “[i]t is common knowledge that the normal operation of a law office exposes confidential professional information to non-lawyer employees of the office . . ..” EC 4-2. Further, the law recognizes that attorney-client privileged information generally remains protected when it is disclosed by a lawyer to others acting under his direction. See Restatement, supra, sec. 120 & cmts. f & g; United States v. Kovel, 296 F.2d 918 (2d Cir. 1961).
When a lawyer is employed by a social services agency, however, non-lawyer employees of the agency may not invariably be regarded by the law — or by themselves — as agents of the lawyer who have a responsibility to preserve the confidentiality of information received from the lawyer. For example, if the lawyer discloses client confidences to social workers in the agency, the attorney-client privilege may be preserved in some cases (e.g., where the social worker is assisting the lawyer in providing legal representation in the particular matter) but not in others. The circumstances under which a lawyer in the agency may provide client confidences to an agency employee consistent with the attorney-client privilege, as well as the circumstances under which an agency employee will have a fiduciary duty to preserve such confidences, are questions of law. These questions implicate not only the attorney-client privilege and employment and/or agency law, but also Section 413 of the Social Services Law. For example, assuming that the attorney-client privilege ordinarily would not be waived when the lawyer makes disclosures to social workers or physicians who are facilitating the representation, is the attorney-client privilege nevertheless “trumped” by the disclosure obligations of Section 413 or are these statutory disclosure obligations implicitly “trumped” by the attorney-client privilege? See People v. Belge, 372 N.Y.S.2d 798 (County Ct. 1975) (reporting obligation under public health law is limited by lawyer’s duty of confidentiality). These legal questions, like others, are beyond this Committee’s mandate.
Before disclosing client confidences or secrets to an agency employee, the lawyer must first resolve these legal questions. Ideally, insofar as the answers are uncertain, “[t]he bar should seek clarification through appropriate means (e.g., legislative amendment, judicial interpretation).” Recommendations, supra, 64 Fordham L. Rev. at 1318. Thus, the lawyer should determine whether the confidentiality of the information would be preserved (because, for example, the employee is serving generally or in the particular matter as an agent of the lawyer). The lawyer must also determine whether the employee would in fact preserve the confidentiality of the information (because the employee understands and will respect the duty of confidentiality and may do so consistent with the terms of her employment). If the agency employee cannot be relied on to preserve the confidentiality of the client’s confidences and secrets, then (subject to any applicable exception), the lawyer may not make disclosure without client consent. Cf. N.Y. State 490 (1978) (legal services lawyers may not divulge client confidences and secrets to the organization’s board of directors without client consent).
3. May the lawyer advise minor clients prior to undertaking the representation that the lawyer will disclose confidences and secrets concerning the client’s intention to maim or kill himself or another?
The inquirer asks whether the lawyer or another agency employee may apprise minor clients before the representation commences that the agency will reveal the client’s confidences to the extent that they reveal that the client is thinking of maiming or killing himself or another.
The answer turns in part on whether the advice is simply a restatement of the lawyer’s legal obligation to make certain disclosures. If the law requires a lawyer in the agency to disclose a minor client’s intent to maim or kill himself or another, then the advice is appropriate, inasmuch as it fairly communicates the scope of the lawyer’s duty of confidentiality.
The Code itself does not require lawyers to report their minor clients’ intention to kill or maim themselves or another, although it permits them to do so. Disclosure of a client’s intent to maim or kill another would be permissible under DR 4-101(C)(3), which provides: “A lawyer may reveal . . . [t]he intention of a client to commit a crime and the information necessary to prevent the crime.” Likewise, as previously noted, DR 4-101 has been interpreted to permit a lawyer, out of concern for the preservation of human life, to report a client’s expressed intention to commit suicide. N.Y. State 486 (1978). By the same token, we believe that a lawyer has discretion to disclose a minor client’s intention to main himself to the limited extent that the disclosure is necessary to protect the client from serious injury. Thus, the lawyer could appropriately inform minor clients in advance of the representation that, as an exception to the obligation to keep the minor’s confidences, the lawyer may report the minor’s intent to maim or kill himself or another.
It does not necessarily follow that, because the lawyer is permitted to make disclosure, the lawyer should invariably disclose a minor client’s intention to kill or maim himself or another. On the contrary, EC 4-7 recognizes that “[t]he lawyer’s exercise of discretion to disclose confidences and secrets requires consideration of a wide range of factors.” It would generally be inappropriate, therefore, for a lawyer to decide invariably to reveal client confidences whenever she is permitted to do so, rather than taking relevant factors into account in making an individual decision. This being so, a lawyer may not commit herself in advance to revealing a minor client’s confidences whenever the minor reveals an intention to kill or maim himself or another. And, for a lawyer to advise the client that she will invariably do so, when she must in fact exercise individualized discretion in deciding whether or not to do so, would be impermissibly misleading if the lawyer’s purpose is to apprise the client of the ordinarily applicable scope of lawyer-client confidentiality. Thus, unless some law other than the Code requires the lawyer to report a minor client’s intent to maim or kill himself or another, it would ordinarily be improper for the lawyer to advise the client that she will report such information, rather than that she may do so.
Under certain circumstances, however, the lawyer may obtain advance consent to otherwise impermissible disclosures. Thus, it may be appropriate for the lawyer to seek the minor client’s consent to make disclosure in all cases in which the child intends to kill or maim himself or another. Whether the lawyer may seek and rely on such consent should be determined in light of the framework we set forth below in the context of the principal question raised by the inquiry, namely, whether the lawyer may report suspected abuse or mistreatment.
4. May the lawyer effectively obtain advance consent to the disclosure of confidences and secrets concerning child abuse and mistreatment?
The inquirer asks whether the lawyer or another agency employee may apprise minor clients before the representation commences that the agency will report information that the client’s caretaker is abusing him or her. As noted above, the lawyer may do so if she is certain that the law would require her to make such a report. In that event, the advice conveys accurate information about the scope of attorney-client confidentiality. If the law does not invariably require such a report, however, then the question remains whether the lawyer may condition the representation on the client’s agreement to allow the lawyer to report information that the lawyer would otherwise have to keep confidential.
Under DR 4-101, a lawyer may disclose client confidences and secrets “when the client consents after full disclosure.” EC 4-2. Consent to the disclosure under particular circumstances or for particular purposes may generally be obtained in advance of obtaining client confidences. Indeed, there are circumstances in which consent certainly should be sought in advance of client disclosure, as is the case when a lawyer jointly represents two or more clients with the understanding that one client’s confidences may be shared with another joint client. See generally Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 Fordham L. Rev. 1253, 1262-63 n.48 (1994) (discussing authorities on the question of whether confidences may be shared among joint clients in the absence of consent). Further, the lawyer may condition her willingness to undertake the joint representation on the joint clients’ consent to the disclosure of otherwise protected information. See, e.g., N.Y.S. Bar Ass’n, Op. 555 (1983) (“The lawyer may, at the outset of the joint representation or even perhaps at some later stage if otherwise appropriate, condition his acceptance or continuation of the joint representation upon the clients’ agreement that all communications from one on the subject of the joint representation shall or may be disclosed to the other.”).
Although advance consent is not necessarily proscribed, the question of whether the lawyer may seek, obtain and act upon the minor client’s advance consent to the disclosure of confidences and secrets concerning abuse or mistreatment raises three concerns which we address below.
a. Appropriateness of seeking advance consent. Whether it is appropriate for the lawyer to seek consent in advance to certain disclosures depends on whether the lawyer seeks advance consent in order to enable the lawyer to represent the client effectively or whether the lawyer is seeking to promote her own interests or those of a third party.
In some contexts, a lawyer may determine that the disclosure of confidences or secrets will facilitate the representation. For example, the lawyer may determine that it would promote the client’s interests to make disclosures to co-parties and their lawyers pursuant to a “common representation” or “joint defense” agreement. Or, the lawyer may determine that the client can best be served by making disclosures to non-lawyer professionals who can assist the lawyer in representing the client. See generally Heather A. Wydra, Note, Keeping Secrets Within the Team: Maintaining Client Confidentiality While Offering Interdisciplinary Services to the Elderly Client, 62 Fordham L. Rev. 1517 (1994).In some cases, the lawyer may believe that some disclosures will be essential to effective representation, as may be the case when a lawyer jointly represents two or more clients in a single matter. In cases such as these, it is appropriate for the lawyer to seek advance consent to certain disclosures, and it may even be appropriate to condition the representation on the client’s consent.
It would not necessarily be appropriate, however, to seek the client’s consent in order to promote interests other than those of the client. For example, the social services agency that employs the inquiring lawyer may ask her to seek the client’s consent to certain disclosures. The lawyer may do so if she reasonably believes that such disclosures are either in the client’s best interests or likely to be a matter of indifference to the client. See, e.g., N.Y. State 645 (1993) (lawyer who is member of town board may seek client consent to disclosures that may be required by town ethics and disclosure law); N.Y. State 485 (1978) (Legal Aid lawyers may seek juvenile clients’ consent to disclosures to research institute). It would not be appropriate, however, to seek to promote the agency’s interests by soliciting the client’s consent to disclosures that are likely to be contrary to the client’s best interest. DR 5-107(B); EC 5-23 (“Some employers may be interested in furthering their own . . . social goals without regard to the professional responsibilities of the lawyer to an individual client. . . . Since a lawyer must always be free to exercise professional judgment without regard to the interests or motives of a third person, the lawyer who is employed by one to represent another must constantly guard against erosion of professional freedom.”); N.Y. State 490 (1978) (legal services lawyers must avoid any outside interference by the organization’s board of directors “in the handling of specific cases”).
b. Effectiveness of consent. The lawyer must also consider whether the client’s consent to disclosures of confidences or secrets is effective. This raises several concerns.
First, as noted previously, the client’s consent must be given after “full disclosure.” EC 4-2. Because “the client’s consent is effective only if given on the basis of information and consultation reasonably appropriate in the circumstances,” Restatement, supra, sec. 114 cmt. c, it is unlikely that the lawyer can prepare a single “script” that will suffice for all clients or that the lawyer can fully delegate this task to non-lawyer personnel.
Second, the client’s consent must be voluntary. Among other things, the lawyer must consider whether the minor perceives, accurately or not, that in the absence of consent, he will not be able to secure legal assistance. If that is the case, it is unlikely that the consent can be deemed voluntary. See N.Y. State 490 (1978) (legal services lawyers seeking consent to disclose client confidences to the organization’s board of directors “should be particularly sensitive to any element of submissiveness on the part of their indigent clients; and, such requests should be made only under circumstances where the staff is satisfied that their clients could refuse to consent without any sense of guilt or embarrassment”).
Finally, the lawyer must consider whether the minor is able to make a reasoned decision to consent to the disclosures. If not, then, as discussed above, the lawyer may have authority to make decisions concerning confidentiality and disclosure on behalf of the minor in accordance with the minor’s best interests.
c. Revocation of consent. If the minor client consents in advance to the lawyer’s reporting of confidences or secrets concerning abuse or mistreatment, the client may later change his mind and revoke consent, in which event the lawyer must maintain confidentiality (subject to the exceptions discussed above). Compare Restatement, supra, sec. 202, cmt. f (“A client who has given informed consent to an otherwise conflicted representation may at any time revoke consent.”). While there are situations in which a client may not effectively revoke a decision, because the lawyer or a third party has reasonably relied on the client’s consent to his or her detriment, see id., that would not be the case where a minor client consents in advance to the disclosure of information about abuse or mistreatment.
Whether the lawyer may subsequently discontinue the representation upon the client’s revocation of consent is governed by DR 2-110. DR 2-110 would permit the lawyer to withdraw from the representation “if withdrawal can be accomplished without material adverse effect on the interests of the client,” if “[t]he lawyer’s client knowingly and freely assents to termination of the employment,” and in various other circumstances which may or may not be applicable in a particular case. When the lawyer appears before a tribunal, the lawyer’s withdrawal is also subject to the rules of the tribunal. DR 2-110(A)(1). If withdrawal from the representation would not be permissible, then it would be untrue, and therefore improper, to advise the minor client that the lawyer will terminate the representation unless the client permits the lawyer to disclose client confidences.
A lawyer employed by a social services agency generally must preserve confidences and secrets relating to the abuse or mistreatment of a minor client unless the client consents to disclosure. The lawyer may make disclosure without the minor client’s consent, however, if: (a) disclosure is required by law; (b) disclosure is necessary to protect the client from being killed or maimed by another; (c) disclosure is necessary to prevent the child from killing or maiming himself or another; or (d) the client is unable to make a reasoned decision about whether or not to make disclosure and the lawyer concludes upon analysis that disclosure would be in the client’s best interest. Without client consent, the lawyer may not disclose client confidences or secrets to others employed by the agency unless the lawyer determines that the agency employees would preserve the confidentiality of the disclosures. Subject to limitations identified in this Opinion, before undertaking the representation the lawyer, upon full disclosure, may seek and obtain the minor client’s voluntary consent to the lawyer’s reporting of information concerning abuse or mistreatment; however, the client is entitled to withdraw such consent thereafter.