Through the Looking Glass in Indiana: Mandatory Reporting of Child Abuse and the Duty of Confidentiality, 92 Notre Dame L. Rev. Online 22 (2016)
In 2015, the Legal Ethics Committee of the Indiana State Bar Association issued an Opinion (the “Opinion”) addressing a lawyer’s duty to conceal or disclose information regarding sexual abuse of a minor. It concluded 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 disregarded the text of the applicable Rule of Professional Conduct and did not consider the possible scenarios that could result from its interpretation of Indiana’s mandatory disclosure statute, the doctrine of the attorney-client privilege, and the Rules of Professional Conduct. In the end, the recent Committee Opinion creates confusion and defeats the purpose of providing guidance to lawyers about their ethical obligations. In an effort to clarify this confusion, this Essay will explain the issue presented by the Opinion and will suggest the analysis needed for its proper resolution according to the Indiana Rules of Professional Conduct. Part I of this Essay will briefly discuss the issue of child abuse in the United States, which has led many states to restructure or rethink their reporting obligations and confidentiality laws. Next, Part II will outline the Indiana Ethics Committee’s Opinion, highlighting the flaws in the Committee’s reasoning in light of the plain text of Indiana’s mandatory reporting statute and Rules of Professional Conduct. Part III will then analyze the Opinion in light of the interplay between this mandatory reporting statute and the duty of confidentiality, as laid out in the Rules of Professional Conduct. In so doing, it will show that the conclusion reached by the Ethics Committee in its recent Opinion is unsubstantiated by the law. The Essay will conclude by providing a four-step analysis that attorneys should follow to determine whether the duty of confidentiality applies in a given situation.
Alberto Bernabe, Through the Looking Glass in Indiana: Mandatory Reporting of Child Abuse and the Duty of Confidentiality, 92 Notre Dame L. Rev. Online 22 (2016)