MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2010-01
Confidentially Issues of Employing Mental Health Workers Who May Have a Duty to Report
You have requested an opinion from this Committee concerning your firm’s intention to hire a social worker to work for your office as a “case specialist”. You have advised the Committee that this mental health professional would assist CINA attorneys by interviewing clients and children, observing visits betweens parents and children, providing opinions in the field of mental health issues, and testifying in court. You seek an opinion about whether the attorney-client privilege under 1.6 of the Rules of Professional Conduct would extend to a nonlawyer employee such as a social worker, who would otherwise be a mandatory reporter of suspected child abuse and neglect pursuant to Md. Code Ann., Family Law §5-704 (“FL §5-704”). In essence, you seek an opinion as to whether such a nonlawyer employee would be exempt from the reporting requirements of FL §5-704, by virtue of his or her employment with your law firm.
The Ethics Committee may only provide opinions about whether a practice is ethical and may not provide legal opinions. Whether the attorney-client confidentiality protections of Rule 1.6 would extend to a social worker employed by your firm and would supersede the social worker’s duties pursuant to FL §5-704 is a legal issue that could only be determined by a court of law.
However, the following may assist you in your analysis of the issue. FL §5-504(a) provides:
Notwithstanding any other provision of law, including any law on privileged communications, each health practitioner, police officer, educator, or human service worker, acting in a professional capacity in this State:
(1)(i) who has reason to believe that a child has been subjected to abuse, shall notify the local department or the appropriate law enforcement agency; or
(ii) who has reason to believe that a child has been subjected to neglect, shall notify the local department
(emphasis supplied). Comment 17 to Rule 1.6 provides:
Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If however, the other law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to comply with the law.
Based on these provisions, the attorney-client confidentiality protections set forth in Rule 1.6 may not supersede a social worker’s statutory duty. In addition, the Committee is concerned with your stated intention of having an employee of your firm testify because doing so may implicate attorney-client confidentiality issues and may be deemed a waiver of the attorney-client privilege. Finally, you should also be cognizant of your obligations under Rule 5.3, regarding nonlawyer assistants. Among other things, Rule 5.3 makes you responsible for assuring that the social worker’s conduct is compatible with the professional obligations of the lawyer.
REFERENCES:
- Rule 1.6, Rules of Professional Conduct
- Rule 5.3, Rules of Professional Conduct
- Md. Code Ann., Family Law, Sec. 5-704
ASSIGNED TO: Marc Emden
REVISED BY: Christine Pham
DATE ASSIGNED: September 4, 2009
DATE DISTRIBUTED: October 1, 2010