An important bill addressing mandatory reporting of child abuse was just recommitted to the appropriations committee of the Pennsylvania General Assembly on June 20. HB 436 proposes to amend portions of Title 23 of the Pennsylvania Consolidated Statutes; specifically, Chapter 63: Child Protective Services, which would require attorneys to become mandatory reporters of suspected child abuse.
Mandated reporters under the current version of §6311(b) of Title 23 are people who come into contact with children in the course of employment, occupation or practice of a profession. These individuals are required to report — or cause a report to be made — when they have reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under their care, supervision, guidance or training, or of an agency, institution, organization or other entity with which they are affiliated, is a victim of child abuse. This includes suspected child abuse by an individual who is not a perpetrator. Now, you’re probably wondering why this doesn’t, by definition, already apply to lawyers. The answer is that the current rule specifically exempts attorneys from mandatory reporting.
In its current form, HB 436 defines mandated reporters as specific individuals, 18 years of age or older, who shall make a report of suspected child abuse — or cause a report of suspected child abuse to be made — subject to §6311(b) if he or she has reasonable cause to suspect, on the basis of medical, professional, or other training and experience, that a child is a victim of child abuse. The definition goes on to identify specific individuals licensed in different professions and includes attorneys as one category of individuals required to report suspected child abuse.
Some other changes to §6311(b) proposed by HB 436 provide bases on which the mandated reporter must report, which includes reporting when “a person makes a specific disclosure to the mandated reporter that an identifiable child is the victim of child abuse” or when “an individual 14 years of age or older makes a specific disclosure to the mandated reporter that the individual has committed child abuse.”
The basic question of the day is: Will these proposed amendments to §6311 of Title 23 cut into a client’s attorney-client privilege? We can’t forget Rule 1.6 of the Pennsylvania Rules of Professional Conduct, which states that a lawyer shall not reveal information that a client has told to him or her unless the client gives informed consent to do so, or unless the lawyer has to reveal the information under Rule 3.3, regarding candor toward the tribunal. Rule 1.6 goes on to state that there are exceptions in which a lawyer may reveal information that a client has told him or her if the purpose of the disclosure is to, among other things, prevent reasonable certain death or substantial bodily harm or to prevent the client from committing a criminal act. An explanatory comment to the rule states that although the purpose of the rule is to protect the public interest by preserving confidentiality of information relating to lawyers and the representation of their clients, there are limited exceptions where an attorney may reveal information. In general, exchange of complete information between client and attorney is encouraged rather than discouraged to allow the lawyer to effectively represent his or her client.
Section 6311(b)(1.3) of HB 436 proposes that privileged communications to attorneys be subject to the Confidential Communications to Attorney sections of 42 Pa.C.S. at §§5916 (criminal) and 5928 (civil). Also proposed is that when an attorney representing a “nonorganizational client” is required to report suspected child abuse under the basis provided in §6311(b)(3) or (4), the following also applies: “(I) When making a report of suspected child abuse, an attorney shall identify information the attorney deems to be confidential under the rules of professional conduct for attorneys. Notwithstanding the provisions of Section 6340 (relating to release of information in confidential reports), the information the attorney deemed to be confidential shall not be disclosed to any person other than those responsible for investigating the report and providing for the child’s safety, or those investigating or prosecuting a failure to report under Section 6319 (relating to penalties for failure to report or to refer)”; and “(II) Neither the client’s disclosure to the attorney nor the information the attorney deemed confidential when reporting to the department shall be used as evidence in any determination made under Section 6368 (relating to investigation of reports), and the attorney shall not be required to provide any information that is asserted as confidential under subparagraph (I) for any civil, criminal or administrative proceeding which results from or relates to the report of suspected child abuse.” Nothing in this proposed subsection of HB 436 shall prohibit the use of information provided by another source, even if it is substantially similar to that which was provided by the attorney in his or her report.
In plain English, the proposed statute change states that attorneys are mandated reporters when a client makes a disclosure to the attorney that a specific child is a victim of child abuse or when an individual, 14 years of age or older, tells the attorney that he or she has committed child abuse. However, in making the report, the attorney can deem certain aspects of the report or the entire report confidential so as to protect the privilege of the person making the disclosure to the attorney. Information that is marked confidential is only given to the individuals who are making the investigation of child abuse and cannot be used as evidence that the suspected child abuse happened. Thus, if the only evidence of the abuse is the confidential disclosure, the investigation will not necessarily produce a finding of abuse. However, if the disclosure that is deemed confidential is learned by the investigator from an independent source, then it could be included as evidence in an abuse determination.
Making attorneys mandatory reporters of child abuse will prohibit us from maintaining attorney-client privilege as it exists today, particularly when the topic of the privilege is child abuse, which is difficult in and of itself. While the proposed statute change appears to go out of the way to protect attorney-client privilege, it will be interesting to see, if the statutory changes pass, what internal measurements will become necessary to keep disclosures marked “confidential” really, and truly, “confidential.”
Lisa Shapson is a family law attorney with Berner Klaw & Watson and co-chairs the divorce/equitable distribution committee of the Philadelphia Bar Association’s family law section.