11/10/15 WHEN TO KEEP SECRETS Mandatory Reporting, Confidentiality, & Emergency Motions Graham Polando St. Joseph Probate Court “VICTIM OF CHILD ABUSE OR NEGLECT” Ind. Code 31-9-2-133 1
11/10/15 EXAMPLES… “PARENT…FAILS TO PARTICIPATE IN A [SCHOOL] DISCIPLINARY PROCEEDING” “VICTIM OF A SEX OFFENSE…” 2
11/10/15 “HAS AN INJURY…[ETC.] THAT ARISES OR IS SUBSTANTIALLY AGGRAVATED [DUE TO MOTHER’S DRUG USE DURING PREGNANCY] ” “…MISSING CHILD…” “PHYSICAL OR MENTAL CONDITION SERIOUSLY IMPAIRED OR SERIOUSLY ENDANGERED…” 3
11/10/15 “PHYSICAL OR MENTAL HEALTH SERIOUSLY ENDANGERED…” WHAT DO YOU DO? ■ Notify the Department of Child Services? – If not, crime? – If so, betraying your client? 4
11/10/15 MANDATORY REPORTING Getting to the duty to report “requires reference to no fewer than FIVE separate provisions contained in TWO different titles and FOUR different articles of the Indiana Code.” Smith v. State, 8 N.E.3d 6 68 (Ind. 201 4) (Rucker, J., dissenting) (emphasis supplied). MANDATORY REPORTING 5
11/10/15 “REASON TO BELIEVE” MANDATORY REPORTING 6
11/10/15 “A DUTY UNDER THIS CHAPTER” ■ No specific exception for attorneys (some other states have). ■ “Typhoid Mary” problem? WHY NOT PREVAIL ON CLIENT TO REPORT? SMITH V. STATE 8 N.E.3d 668 (Ind. 2014). 7
11/10/15 Principal Associate Associate Principal #1 Principal #2 School Nurse Examine Questions Security Footage Alleged Rapist Calls YOC Superintendent’s Office Calls DCS DCS OPERATOR: “…this looks like something we are going to screen out on our end but it is something that we would probably go ahead and forward to law enforcement…” DCS OPERATOR: “…so if you are saying that is something you guys will do…if for some reason it gets screened back and we do investigate I will give you a call back…” 8
11/10/15 ■ SCREEN SHOT OF WTHR STORY “Investigation” SMITH V. STATE, 8 N.E.3d 668 (Ind. 2014). Court of Appeals Supreme Court “…we also reject his [Smith’s ] “…child abuse is a serious belief that the reporting claim, and a reasonable statutes permit a citizen t o investigation…is not delay reporting in order to improper…” 982 N.E.2d 348, ‘assess and reflect’…the statutes do the opposite— 363 (Ind. App. 2013) (vacated). they require immediate reporting…” 8 N.E.3d at 689. SMITH V. STATE 8 N.E.3d 668 (Ind. 2014). CONVICTION AFFIRMED 9
11/10/15 Principal Associate Associate Principal #1 Principal #2 School Nurse Examine Security Footage Questions Alleged Rapist Superintendent’s Office Calls YOC Delivers Evidence to Calls DCS Police “EFFECT OF COMPLIANCE ON INDIVIDUAL’S OWN DUTY TO REPORT” IC 31-33-5-3 ■ CANNOT say ■ CAN say “report has “someone else should already been made to have reported” the best of [my] belief.” HEARSAY REPORTS: GILLILAND V. STATE, 979 N.E.2d 1049 (Ind. App. 2012)(Crone, J.) Athletic Director Players Parents Gilliland 10
11/10/15 ISBA LEGAL ETHICS COMM. FORMAL OPINION 2 OF 2015 OPINION 2 OF 2015 LAWYERS MUST REPORT LAWYERS SHOULD NOT REPORT If necessary to prevent reasonably Any other information of “completed” certain death or substantial bodily harm harm OPINION 2 OF 2015 SEPARATION OF STATUTORY POWERS INTERPRETATION 11
11/10/15 OPINION 2 OF 2015 OPINION 2 OF 2015 COMMENT [2] TO IRPC 1.6 “A fundamental principle in the client-lawyer relationship is that…” 12
11/10/15 COMMENT [2] TO IRPC 1.6 “…in the absence of the client's informed consent, the lawyer MUST NOT reveal information relating to the representation…” COMMENT [2] TO IRPC 1.6 “…The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.” WHEN COULD LAWYER ADVISE CLIENT OF MANDATORY REPORTING? Before? No Disclosure After? Betrayal of Client 13
11/10/15 Statutory Interpretation: Abrogating other profession’s confidentiality… ■ Clergy : – “Failure to report child abuse is a criminal offense…This law does not exempt spiritual leaders from reporting.” Ballaban v. Bloomington Jewish Community, 982 N.E.2d 329 (Ind. App. 2013) 341-342 (concurring opinion). ■ See also – Therapists ; State v. I.T., 4 N.E.2d 1139 (Ind. App. 2014). – Health Care Workers ; Devore v. State, 658 N.E.2d 657, 658 (Ind.Ct.App.1995), reh'g denied, trans. denied. CRITICISM OF OPINION 2 OF 2015 14
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11/10/15 Rule 1.6(b)(6): ■ “A lawyer may reveal information…to comply other law…” ■ “Other law may require that a lawyer disclose information…Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these rules…” Comment [12] to Rule 1.6. 16
11/10/15 CONCLUSION: RULES TRUMP STATUTE ■ Kentucky Formal Opinion KBA E-360 at 2 (1993) – “the Court, in Rule 1.6, has given lawyers discretion in these scenarios…a holding that the [mandatory reporting] statute overrides this grant of discretion would violate the separation of powers.” ■ Nebraska Attorney General Op. No. 207 at 5 (1982), – Mandatory reporting statute’s “curtailment of the common law attorney/client privilege…would be difficult to defend as to constitutionality.” THE DUTY IN “ONGOING” CASES ■ Rule 1.6 “recognizes the overriding value of life and phys ic al integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm.” Comment [6] to Ind. R. Prof. Cond. 1.6. OPINION 2 OF 2015 LAWYERS MUST REPORT LAWYERS SHOULD NOT REPORT If necessary to prevent reasonably Any other information of “completed” certain death or substantial bodily harm harm 17
11/10/15 EMERGENCY MOTIONS “…often in custody cases, litigants make accusations against one another that are arguably as more serious than those in dependency (CHINS) cases…” Michelle Cortese, “What Courts Should Consider When Determining Children’s Best Interests, 34 Child Law Practice Online 142, 143 (2015). 18
11/10/15 WHY ISSUE OPINION #1-01? “The opinion is generated by a SUBSTANTIAL NUMBER of ethics complaints reviewed by the Commission in which judges have granted ex parte temporary child custody petitions…” OPINION #1-01 “The Commission calls on the profession to eliminate the SEEMINGL Y WIDE-SPREAD PRACTICE in Indiana… OPINION #1-01 “…where LAWYERS SEEK, and JUDGES PROVIDE, ex parte emergency custody where no irreparable harm or injury reasonably is foreseen without notice and a hearing…” 19
11/10/15 WHY ISSUE OPINION #1-15? “The Commission has likewise received A NUMBER of ethical complaints alleging that judges have granted ex parte petitions for temporary guardianship…” 20
11/10/15 OPINION #1-15? “The Commission wishes to AGAIN impress on Indiana judicial officers the importance of abiding by the attempted notice and proof requirements contained within T rial Rule 65(B).” WHY EMERGENCY MOTIONS EXIST ■ To the client, it really is an “emergency” ■ Clients don’t want DCS involvement ■ Damages are poor substitutes ■ Judges want to avoid irreparable harm ■ No downsides DOWNSIDES TO EMERGENCY MOTIONS ■ Professional discipline – for attorneys – for judicial officers ■ For Litigants: – Attorney Fees – Potential Criminal Liability – Credibility Issues 21
11/10/15 In re Anonymous, 729 N.E.2d 566 (Ind. 2000) May 11: Hearing on June 9: “Verified Grandparents’ Petition for Petition for Custody Immediate Emergency Custody” •GAL Appointed June 8: GAL Recommendation •Court Sets Hearing June 23 In re Anonymous 729 N.E.2d 566 (Ind. 2000) Lawyer Judge ■ Asked to speak to Judge when at ■ “Advised he would read courthouse to file “Emergency the…report…” Motion” ■ Lawyer “should return to the court ■ Informed Judge of “Emergency later in the day..” Motion” ■ Grants “emergency ■ “Urged the judge to read the custody…pending a full hearing on guardian ad litem’s report.” the merits.” 22
11/10/15 In re Anonymous 729 N.E.2d 566 (Ind. 2000) Lawyer ■ Calls opposing counsel and informs him of the “temporary custody” order Trial Rule 11(A) “The signature of an attorney constitutes a certificate…that to the best of his knowledge, information, and belief, there is good ground to support it [the Motion]” 23
11/10/15 CRIMINAL LIABILITY FOR CLIENTS ■ Code Section CREDIBILITY PROBLEMS FOR LITIGANTS PROFESSIONALISM ■ Avoid the “race to the courthouse.” 24
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