Is a defense attorney required to report child abuse and violate attorney-client privilege? Say that a defense attorney is assigned to defend a client for some crime. They communicate with each other to discuss their defense, and their conversations are subject to attorney-client privilege. The confidentiality has consistently been upheld by courts. But what if at some point while working together, the attorney sees clear indications of child abuse. Or perhaps even the client flat out tells the attorney that they are abusing their child. This creates a conflict: the attorney is obliged to keep the information confidential and prove the client's innocence in the current case. Having this be reported will not only break that confidentiality, but also likely damage their client's character such that the case is much less likely to win. However, the safety of a child is at stake and inaction may have tragic consequences. Is the defense attorney required to report the child abuse and violate attorney-client privilege?
Attorneys’ Duty to Report Child Abuse addresses your question. Based solely on Rule 1.6(1) of the ABA's model rules (A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm...), some people read an exception to attorney-client privilege in the case of child abuse. Many states have mandatory reporting for people that become aware of child abuse. Some states make all people mandatory reporters. Others make only certain professions (e.g. teachers, firefighters, physicians, clergy, many others) mandatory reporters. Some of these states include attorneys as mandatory reporters. Some states that include attorneys as mandatory reporters allow for the attorney to invoke the attorney-client privilege as a reason to not report. The laws in each state as of 2004 are summarized in the table on pages 69-71 of the article. I'm not familiar with the law in every state today, but California's is not significantly different from 2004. Attorneys are not mandated reporters.
A self-represented person, as a practical matter, has no choice but to engage with the court when an oral argument is conducted. A person present in a courtroom likewise has an obligation to acknowledge a judge addressing them. Usually it wouldn't be contemptuous to fail to appear at oral arguments of a fully briefed matter (e.g. a motion for summary judgment, or an appeal), but it would generally be viewed negatively. One could respond to a question from the court with &quot;I don't really have anything more to say, my brief speaks for itself.&quot; And, sometimes a court would leave it at that, but if the court insists there is really no other option than to clarify and explain yourself. Most often, this helps more than hurts a pro se party, although I've certainly seen cases with ghost written pleadings (which are authorized if disclosed in many jurisdictions) where this isn't the case. A fairly common tactic in civil litigation is the take a deposition of a party, or to call a party to the witness stand, and to ask them if they really want the relief that their filed legal documents says that they do, as a way to narrow the scope of the claims brought against the questioning lawyer's client. But, this is less of an issue with a pro se party when the person who drafted the legal documents and the person engaging in oral arguments are the same person. This can't be done in criminal litigation, but I could see a prosecutor trying to do something similar in oral argument, although usually in that context, the judge and not the prosecutor, is asking the questions.
Is it unethical to file a claim against an attorney who lied? No. It is actually encouraged if the claimant can submit proof of attorney's misconduct. The grievance is to be filed in the claimant's jurisdiction rather than with the American Bar Association. An attorney's lies may be severe enough to constitute fraud on the court and possibly warrant disbarment. See Matter of LaRosee, 122 N.J. 298, 311 (1991). The real question from a practical standpoint is whether the Disciplinary Review Board and related entities will follow through or be unduly lenient about that attorney's misconduct. What if the Judge ultimately rejected the attorney's claim? That does not reduce the impropriety of the attorney's misconduct. The so-called &quot;zealousness&quot; with which lawyers advance their clients' position does not justify indulging in dishonesty devised to result in miscarriage of justice. Is it wrong to bring it to the attention of the judge or do judges frown on such things (since the attorney is representing the other party)? No. Judges generally are not up-to-date about attorneys' misconduct. Putting them on notice might frustrate a crook's further attempts to mislead the court in that and other cases the judge presides. By not reporting a crook, the public remains exposed to risks from that lawyer's pattern of misconduct.
united-states In General In the U.S., the ethical rules contemplate circumstances in which a valid statute may authorize or require a lawyer to act in a manner contrary to the rules of professional ethics that generally apply to U.S. lawyers. But, the converse is not true. There are no circumstances under which the rules of ethics provide that violating the law is ethical. In particular, the rules of ethics for lawyers state that: A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. A lawyer is required to vigorously represent their client's interests, but this is subject to the requirement that a lawyer not allow his or her services to be used to perpetrate a crime or a fraud. Threats Of Criminal Or Administrative Action The closest the rules of professional ethics come to something similar is the rule (which varies in detail from jurisdiction to jurisdiction that have this rule and is omitted from the ethical rules of some jurisdictions) is the prohibition as a matter of professional ethics, against threatening to bring criminal charges, or to seek ethical or administrative remedies, to gain advantage in a civil lawsuit. Colorado's rule on this issue is here, but this has been dropped from the Model Rules of Professional Conduct that the ABA recommends that all states adopt. Dealing With Misconduct By An Entity Client Another similar situation involves the protocols that a lawyer for a corporation or other entity that believes that the entity is acting or about to act unlawfully must follow. This basically involves trying to get the entity to change its conduct by all available means as opposed to going public as a whistle blower, and often forbids a lawyer from revealing his or her client's misconduct learned about in his or her capacity as an attorney for the entity (in cases involving misconduct not facilitated by the lawyer's own services). Duties That Don't Apply To Lawyers And, there are some duties that apply to the members of the general public, but do not apply to lawyers. No Duty To Report Past Client Crimes For example, there are certain crimes that, in some jurisdictions, there is a duty to report. But a lawyer does not have to report an already completed crime of a client that is disclosed to the lawyer in confidence. But this is really more a matter of the scope of the duty to report than it is of ethical rules authorizing a lawyer to violate the law. No Litigation Related Defamation Liability Another generally applicable law that does not apply to lawyers is the law of defamation in certain circumstances. Statements made by a lawyer in the course of representing a client in litigation or in anticipation of litigation are subject to a litigation privilege from defamation liability, although they could still be sanctioned by the court presiding over the case being litigated, or by the professional ethics authority for the jurisdiction, if the statements that would otherwise be actionable as defamatory violate ethical rules regarding public statements about litigation (also here). This litigation privilege was invented to prevent ordinary lawsuits from triggering satellite litigation in parallel cases over statements made by lawyers in the course of litigation, instead consolidating that authority in two sets of public officials (the presiding judge in the case and the ethics enforcement authority) that are not under the direct control of the litigants. It serves a purpose similar to the rule prohibiting threats to seek criminal or administrative sanctions for the purpose of gaining advantage in a civil case. Not All Violations Of The Law Are Ethical Violations Also, there are violations of the law which are not violations of a lawyer's professional ethics - for example, failing to pay a personal credit card bill, or speeding, or parking illegally. But this is simply because there is not an ethical rule that expressly says &quot;it is unethical to ever violate any law&quot;, not because there is an ethical rule that states something along the lines of the means justifies the ends in some circumstances. But it is also the case that some violations of the law by an attorney unrelated to the practice of law itself are still considered ethical violations, for example, if it &quot;reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.&quot; (Sometimes this is referred to as the &quot;officer and a gentleman clause&quot; in reference to a Uniform Coded of Military Justice prohibition that is similar in character). Fiduciary Duties To Put A Client Above Oneself Beyond the formal ethical rules for lawyers, lawyers are also fiduciaries for their clients. Fiduciaries are generally required to put their client's interests above their own. So, for example, suppose that a client will lose his claim if a lawsuit is not filed by the statute of limitations, and the lawyer will violate the law by failing to file his tax return on time which is due with no further extensions on the same date as the statute of limitations, and the lawyer has the ability to do one or the other but not both. A lawyer's fiduciary duty to his client would probably require him to file the lawsuit for the client, even though this would mean that the lawyer would necessarily violate tax laws by not filing his own personal tax return on time. But again, that is more like guidance in a trolley problem that arises for no fault of the lawyer's own, and less like a justification for breaking the law. The lawyer's failure to file his taxes on time is not justified or excused by his fiduciary duty to his client, it is simply a matter of choosing to avoid harm to client over avoiding harm to himself or herself when the conflict arises from the lawyer's arguably unethical procrastination (another professional ethical obligation of an attorney is a duty of diligence in work for clients, at least). Situations When The Law Is Unclear Another issue that comes up is that the law is often not perfectly clear. This is why we have lawyers at all. Legal ethics somewhat address the situation in which some official has declared that certain actions are illegal or are required, but the lawyer, on behalf of a client, defies the order because it is believed to be unlawful. There are some circumstances where it is permissible to do this (e.g. an unlawful order from a law enforcement officer), and there are other circumstances where it is not (e.g., an incorrectly decided preliminary injunction entered by a judge. that is being appealed). But in all cases, once the law has been determined as applied to a particular case finally and beyond further opportunities to dispute that decision, a lawyer must comply. For example, the ethical rules for lawyers provide almost universally in the U.S. that a &quot;lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.&quot;
canada The Supreme Court has said (Descôteaux et al. v. Mierzwinski, [1982] 1 SCR 860): In summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communications are made to the lawyer himself or to employees, and whether they deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established. While the judgment somewhat conflates the terminology of confidentiality and privilege, these are distinct concepts. Privilege is the right of the client. It is a rule of evidence and has a constitutional dimension that protects against state intrusion. The duty of confidentiality is imposed on practitioners by law society rules. Descôteaux was in context clearly speaking about privilege and has been cited for this point related to privilege in many subsequent cases. See e.g. Maranda v. Richer, 2003 SCC 67 at para. 22.
Defamation requires communication to a third-party I can say (or write) anything I want about a person directly to that person and, unless it is a threat, they have no recourse at all. I can call them a liar, a thief, a Nazi, or a goat fornicator. Of course, I have to be careful – calling them a “bastard” might be a slur on their mother communicated to a third-party (them) which would give her a right to sue although that would require a literal and largely archaic use of the term. That said, you do need to check with your lawyer if you can redact names in the face of a subpoena - complying with a legal obligations is a legitimate use of personal data under GDPR.
Attorney-Client privilege is a one-way duty: The Attorney has to maintain protected information in confidence. It's a professional duty supported in law. There is no corresponding duty for the Client to maintain anything in confidence. The client can waive the privilege at will. Some sample limitations to waivers are governed by Federal Rule Evidence 502. (Granted, in this scenario the concerned board member may be bound by some confidentiality agreement or fiduciary obligation as a consequence of service on the board, or membership in the association, but that's a different matter.) The ABA points out , in its article "How to Lose Attorney-Client Privilege" that: Either voluntary or inadvertent disclosure to outside or non-covered recipients, professional advisors outside the privilege, and experts and consultants, can result in waiver as a matter of law. In this "Ten Things" article the author points out: Business advice, however, is never privileged and – for in-house counsel in particular – the line between the two can appear blurry. ... If a document that is otherwise privileged is shared with third parties, then the privilege is lost. ... A common misperception among the business is that all confidential information is privileged or if they label the communication as privileged they can keep the documents out of the hands of third parties. As we’ve seen, this is not correct and the fact that there is a non-disclosure agreement or other type of confidentiality agreement in place will not make a document privileged nor will it preserve the privilege if it is disclosed to a third party.
Is it acceptable for person A (representing themselves) to refer to person B as &quot;their neighbor&quot; instead of by their name, or would that cause the suit to be dismissed? Omitting the neighbor's name in the pleadings &amp; proceedings cannot singlehandedly cause the dismissal of a defamation suit. The matter would result in dismissal only if the plaintiff repeatedly disobeys court order(s) (if any) to disclose that information. Before the proceedings get to that point, the plaintiff will have had one or more hearings to dispute the defendant's alleged need for identifying a non-party by name. When opposing to that disclosure, the plaintiff's goal is to establish that the false narrative about robbing a neighbor at gunpoint is defamatory regardless of neighbor's name. Keep in mind that the focus in a claim of defamation is the defamed person, whereas the relevance of details such as who the non-parties are pertains to context and evidence. Lastly, the fact that a party to the suit is a pro se litigant is irrelevant from both substantial and procedural standpoints.