NEWS

Lawyers think this law doesn't apply to them

State Bar Association says lawyers may report suspected child abuse and neglect only in certain circumstances.

Marisa Kwiatkowski
IndyStar

Indiana law requires anyone who believes a child is being abused or neglected to immediately report it.

Unless you are a lawyer.

At least, that's the opinion of the Indiana State Bar Association's Legal Ethics Committee, which says lawyers may report suspected child abuse or neglect against their clients’ wishes only when they believe it necessary “to prevent reasonably certain death or substantial bodily harm.”

Child welfare officials say the opinion is wrong and endangers kids.

Attorney Arend Abel, who formerly chaired of the Legal Ethics Committee, said the panel tackled the issue because lawyers have asked for guidance.

In its opinion, the committee said a lawyer’s duty to keep client information confidential is “generally paramount” over the duty to report child maltreatment. To disclose such information against a client’s wishes “will likely result in irreversible harm to the client’s relationship with any attorney — to the client’s and potentially the children’s detriments,” according to the opinion.

The committee also cited the separation of powers in its opinion, arguing that the Indiana Supreme Court’s Rules of Professional Conduct, which require attorneys to keep information confidential under most circumstances, override the law created by legislators.

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Marion County Prosecutor Terry Curry said he thinks the opinion strikes a balance between two fundamental considerations.

“As a society and certainly as a prosecutor, we do not want to see child abuse go unreported and undetected,” Curry said. “The countervailing consideration is just the fundamental rule of attorney-client privilege.”

Curry said people need to be confident that something they share with their attorney is not going to be disclosed. He said attorneys need to know the entire circumstances of a situation in order to “effectively and zealously represent their client.”

James Wide, spokesman for the Indiana Department of Child Services, said the opinion puts the safety of children at risk. Everyone — even therapists, doctors, teachers and ministers — is required to report suspected child abuse or neglect. People who fail to do so could be charged with a misdemeanor.

“No one’s exempt,” Wide said. “We can’t agree with that.”

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Tim Stoesz, a longtime family law attorney, called the State Bar Association’s opinion “abhorrent.”

“I think the people who made this decision haven’t spent a lot of time in the real world of family law and seen the things that happen,” he said. “Attorney-client privilege is not more important than the health and safety of the child.”

Stoesz said the opinion allows lawyers to decide for themselves whether something rises to the level of “reasonably certain death or substantial bodily harm.”

“Is sexual contact between a teacher and students ‘substantial bodily harm?’ ” he asked. “What about child pornography?”

Sandy Runkle-DeLorme, director of programs at Prevent Child Abuse Indiana, said she is concerned that lawyers may not have had the training to be able to make that determination. Child neglect, in particular, can be a complex issue, she said.

Runkle-DeLorme pointed out that people also can report child abuse and neglect anonymously.

“Because 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,” she said.

The opinion makes it clear that it is just that — an opinion to give guidance to attorneys. The Indiana Supreme Court has final say over Indiana law and attorneys’ professional conduct.

Through a spokeswoman, Chief Justice Loretta Rush said she could not comment on the opinion because the matter could come before the Supreme Court.

Call Star reporter Marisa Kwiatkowski at (317) 444-6135. Follow her on Twitter: @IndyMarisaK.