Tuesday, June 11, 2019

New complaint filed in Indiana raises the issue of whether a lawyer has a duty to disclose confidential information related to sexual abuse of children

A couple of years ago, I published an article on an advisory opinion of the Legal Ethics Committee of the Indiana State Bar Association on whether a lawyer has a duty to disclose information regarding sexual abuse of a minor under Indiana law.  The opinion concluded that, absent client consent, in most circumstances an attorney has a duty NOT to report confidential information about child abuse.

As I argued in my article, because Indiana has a mandatory disclosure statute, this conclusion is wrong. You can read my article here.

I am writing about this today because I just heard about a case that is making its way through the Indiana disciplinary process which raises the issue.  And, given the fact that the opinion is still out there, I am worried about the possibility of the case making it to the courts and setting a bad precedent.

The complaint filed against the lawyer (available here) clearly sets out the facts of the case.  In a nutshell, here is what happened: the father of a 15 year old girl discovered that a teacher at her school had been propositioning his daughter and sending her “dick pics.”  Rather than going to pay a visit to the teacher armed with a baseball bat, which would have been my first reaction, or going to the police, which is what he should have done, the father went to talk to the “Head of Schools” (which I assume is either the equivalent of a principal or a school superintendent, but I could be wrong).  The Head of Schools, in turn, hired the lawyer in question to represent the school.

You can read the complaint for the rest of the facts, so let’s fast forward to what’s important.  Neither the lawyer nor the Head of Schools disclosed the teacher’s conduct to the authorities until the associate Head of Schools said it had to be done -- who said so the moment he heard about the problem for the first time.  Meanwhile, the lawyer tried to cover up the incident by offering settlement agreements and requesting pledges of confidentiality. 

The problem here is that Indiana has a mandatory child abuse disclosure statute that imposes a duty to disclose on everyone, including lawyers.

Everyone means everyone, and only the Associate Head of Schools acted accordingly.  Even after the authorities became involved, the lawyer continued to mislead the investigators preventing access to information and evidence.  Some time after the incident came to light and the police intervened, the Head of Schools committed suicide.  The lawyer is now fighting for his license and may have to face charges of possessing child pornography.

Here is my concern: the opinion of the Indiana State Bar would condone the lawyer's conduct in this case.  Yet, the opinion is wrong because the statute is mandatory and, therefore, the lawyer had a duty to disclose according to the law, which would not have constituted a violation of the rules of conduct because the rules explicitly recognize that a lawyer can disclose confidential information when required to do so by law.

I hope the disciplinary authorities and, if it gets there, the courts, get it right.

The Legal Profession Blog has more information on the case here.

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