Christmas Passes Uneventfully - and It's Back to Work

Usually the Bachman family Christmas is filled with Griswold-esque events such as wasps flying out of the fireplace or backed up septic systems (all true stories). Not so this year. Christmas came and went quietly, without fanfare . . . and without incident. Normally the insanity of the holiday makes returning to work a relief. So it was strange just a mere four days later to find myself back at my desk, not in recovery or shuddering as I relive family bonding in my head, but just . . . business as usual. Oh well. Maybe next year we'll be able to create that grease fire or structural collapse that really gives the holiday meaning (and perspective on work).

Many people said that this year it was hard to get into the holiday spirit. Nonsense. What's more merry and bright than terrorist attacks, massive layoffs, and a collapsing economy? All the more reason to down a few stiff cups of eggnog, strap felt antlers to our heads Rudolph-style, and sing Christmas carols with exuberance that would put that Mormon Tabernacle posse to shame. After all, we're Americans. We can't let a little thing like reality stand in our way. As I'm quickly learning in my professional life, the ability to gleefully maneuver around "facts" is a skill applicable to many, if not all areas of life. And with that, it's back to the practice of law!

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.