A little over a month ago, I reported that the Indiana State Bar Association recently issued a new opinion that concludes that absent client consent an attorney may not report information about suspected child abuse learned during a representation unless the lawyer believes it necessary to prevent reasonably certain death or substantial bodily harm. As I argued back then, the opinion is wrong because it suggests there is a duty to keep information confidential when the clear text of the applicable rule states a lawyer can disclose it. Go here to read my original post.
Today, the Chicago Daily Law Bulletin has an article pointing out that "[s]ome child welfare officials say there could be dangerous fallout from an Indiana State Bar Association committee’s opinion that lawyers aren’t bound by a state law requiring anyone who suspects child abuse to immediately report it." I agree.
The article quotes Sandy Runkle-DeLorme, director of programs at Prevent Child Abuse Indiana, saying "[b]ecause it’s an opinion and not a change in legislation, I hope that people do what they need to do, which is follow the law.”
Sure you always want people to "do the right thing," but here is the problem: Because of the opinion, lawyers may fear they will be subject to sanctions if they disclose the information (as required by the law and permitted by the professional responsibility rule) because the disciplinary authorities may later determine that the lawyer should have acted according to the conclusion in the opinion.
On the other hand, if the lawyer follows the opinion, he or she could be subject to misdemeanor charges for violating the law. Damn if you do; damn if you don't.
Thus, oddly, the opinion needlessly puts at risk the safety of both children and attorneys at the same time.
UPDATE April, 2016: I wrote an article about this topic and you can see the draft at SSRN.