Child abuse and the attorney-client privilege

So, tonight at a meeting of the Robert Calvert Inn of Court , a group of lawyers who gather to discuss ethics and civility in the profession, the topic of conversation centered on the boundaries of the attorney-client privilege. And for the first time, I felt compelled to speak up and join the discussion.

The topic that caught my interest was the discussion of Texas Family Code Section 261.101 , which requires any person (including an attorney), who receives information about child neglect or abuse to make a report to the appropriate state agency. The requirement is squarely at odds with the attorney-client privilege, and makes it a crime not to report the information.

This rule has long bothered me, and I emphatically stated tonight that as to events that have already happened, I would not comply with it. It effectively removes the attorney-client privilege for a particular class of people who have been charged or accused of offenses involving children. It also makes candid communication with a potential client impossible. One lawyer tonight suggested that you advise the client at the outset that you may have to report certain things that they tell you to the authorities. I can't imagine a quicker way to shut down communication. In that regard, the rule is actually counter-productive. If you were to tell someone that, they would withhold precisely the critical information sought by the law, which does nothing to protect the child at issue from possible future harm or enable you to represent them effectively. Another person suggested that you inform the court of the information and let them decide what to do - in which case you have still violated the attorney-client privilege.

Maybe it was the two Shiner Bocks I had already had, but I felt the need to bring these points up to the group at large. Surprisingly, like the nerdy kid who is always raising his hand in class with a good answer, the moderator of the discussion asked me to repeat what I said in my "courtroom voice" so others could hear. Oh, the irony. Only in a room full of lawyers could one receive recognition for pointing out a legal justification not to report child abuse. Anywhere else I would probably be greeted with gasps of dismay and disapproving shakes of the head (or maybe tar and feathers). But such is the gift of lawyers - to be able to discuss something like that without the vagaries of emotion getting involved. For what it was worth, I did my best courtroom voice (I don't think I have one - the voice I have is the one I talk with) and made my stand. I pray I'm never put in the position of violating this law, but if I am, I'm glad to know it's only a Class B Misdeameanor - six months in jail is about all I can do on principle.