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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?

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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.

  • To clarify, California is not a state where there is mandatory reporting for all people that become aware of child abuse? – Thunderforge Aug 22 '16 at 18:52
  • @Thunderforge That is correct. Only specified professions, not including attorneys. – user3851 Aug 22 '16 at 19:04
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    So rule 1.6(1) would not cover cases where the attorney learns about child abuse that has happened in the past, unless it is reasonably certain to happen again? – gnasher729 Aug 23 '16 at 10:45

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