If an Arizona lawyer uses a social worker who is a mandatory child-abuse reporter, what must the lawyer tell the client about confidentiality?
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This page answers the general question as of 2021. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
An agency that provides legal and social services to crime victims employs lawyers and social workers who work closely together; the social workers give emotional and crisis support and accompany victims to court. Under A.R.S. 13-3620, a social worker who develops a reasonable belief, in the course of treating a patient, that a minor has been the victim of physical injury, abuse, a reportable offense, or neglect must report it. The committee was asked what ethical duties a supervising lawyer has when a nonlawyer assisting the representation may have a statutory reporting obligation that the lawyer does not.
The committee frames the question through ER 1.6 (confidentiality) and ER 5.3 (responsibilities regarding nonlawyers). It notes it can address only legal ethics, not the scope of a social worker's obligations under the reporting statute. Under ER 5.3, a lawyer must make reasonable efforts to ensure that a nonlawyer's conduct, including someone outside the firm, is compatible with the lawyer's professional obligations, which includes instructing the nonlawyer about the duty not to disclose information relating to the representation. Citing In re Phillips, 226 Ariz. 112 (2010), the committee notes a supervising lawyer must establish internal policies and procedures, not merely supervise.
The committee then distinguishes two situations. Where the social worker has no mandatory reporting obligation, ER 5.3 generally extends the lawyer's ER 1.6 confidentiality duty to the worker, and the lawyer must take reasonable steps to ensure the worker honors it. Where the social worker is subject to a mandatory reporting statute, the lawyer remains bound by ER 1.6, and the worker is generally bound by operation of ER 5.3, but the worker may be required by law to breach confidentiality to comply with the reporting obligation. Because that possibility poses a serious risk to client confidentiality, the lawyer must inform any affected client, at the inception of the representation or when the nonlawyer is involved, of the confidentiality limits and the reporting risk, and obtain the client's informed consent to proceed with using the social worker. ER 1.4 independently requires advising the client in advance of the risk that protected information may have to be disclosed. The committee says a writing is not required for informed consent or ER 1.4 but is advisable, signed by the client and retained by the lawyer. It aligns its conclusion with the District of Columbia Bar's Opinion 282.
In practice
The opinion holds that, under the Arizona Rules as they stood, a lawyer who engages a social worker subject to mandatory reporting must tell the client that the worker may be legally required to report abuse or neglect of a minor even where the lawyer is prohibited from disclosing the client's confidences, and that it is then the client's decision whether to proceed with the social worker. For a non-reporting nonlawyer, ER 5.3 requires reasonable instruction and supervision so the worker's conduct stays compatible with the lawyer's confidentiality duty. Because rules and later opinions may have changed since this opinion, verify the current ER 5.3 and ER 1.6 framework, and the current text of A.R.S. 13-3620, before relying on these specifics.
Common questions
Q: Does the lawyer's confidentiality duty extend to a social worker assisting the representation?
A: Generally yes, through ER 5.3. The opinion states that when a nonlawyer is employed, retained by, or associated with a lawyer, ER 5.3 requires the lawyer to make reasonable efforts to ensure the nonlawyer's conduct is compatible with the lawyer's obligations, including the duty to maintain confidentiality under ER 1.6.
Q: What must the lawyer tell the client if the social worker is a mandatory reporter?
A: The opinion requires the lawyer to inform the client of the lawyer's confidentiality duty and its extension to the nonlawyer, the limits on that duty, and the risk posed by possible mandatory reporting, with enough information for the client to give informed consent under ER 1.0(e) and ER 1.4.
Q: Who decides whether to use the social worker?
A: The client. The opinion concludes that once advised of the risks, the client should be permitted to make, and the lawyer should confirm, the decision whether to proceed with using a nonlawyer subject to a mandatory reporting obligation.
Q: Is a signed writing required to document the client's consent?
A: No. The opinion states that neither informed consent nor ER 1.4 requires a writing, but it is advisable for the lawyer to create a writing describing the communication and the confidentiality risk, signed by the client and retained by the lawyer.
Background and rules framework
The opinion interprets ER 5.3 (responsibilities regarding nonlawyers, including those outside the firm; Model Rule 5.3) together with ER 1.6 (confidentiality; Model Rule 1.6), ER 1.0(e) (informed consent; Model Rule 1.0), ER 1.4 (communication; Model Rule 1.4), and ER 1.2(a) (allocation of authority between client and lawyer; Model Rule 1.2). The statutory backdrop is A.R.S. 13-3620, Arizona's mandatory child-abuse reporting statute. The committee relies on In re Phillips, 226 Ariz. 112 (2010), for the proposition that reasonable efforts under ER 5.3 require internal policies and procedures.
Citations and references
Rules of Professional Conduct:
- MR 5.3 / Arizona ER 5.3(a), (b), (c) (responsibilities regarding nonlawyers)
- MR 1.6 / Arizona ER 1.6 (confidentiality)
- MR 1.0 / Arizona ER 1.0(e) (informed consent)
- MR 1.4 / Arizona ER 1.4(a), (b) (communication)
- MR 1.2 / Arizona ER 1.2(a) (allocation of authority)
Statutes:
- A.R.S. 13-3620(A) (mandatory reporting of abuse or neglect of a minor)
Cases:
- In re Phillips, 226 Ariz. 112, 244 P.3d 549 (2010), reasonable ER 5.3 efforts require internal policies and procedures
Other opinions cited:
- District of Columbia Bar Legal Ethics Op. 282 (1998): lawyer engaging a social worker must inform the client of the worker's possible reporting duty, and the client decides whether to proceed
See also
- ABA Formal Op. 506: Responsibilities Regarding Nonlawyer Assistants
- ABA Formal Op. 08-451: Outsourcing Legal and Nonlegal Services
- ABA Formal Op. 95-393: Client Files to Nonlawyer Supervisors
- AZ Ethics Op. EO-20-0008: Metadata in Electronic Documents
Source
- Landing page: https://www.azcourts.gov/cld/Attorney-Ethics-Advisory-Committee/Opinions-Issued-by-the-Committee
- Original PDF: https://www.azcourts.gov/Portals/0/26/AEA%20Committee/Issued%20Opinions/EO-19-0003%20.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
SUPREME COURT OF ARIZONA
ATTORNEY ETHICS ADVISORY COMMITTEE
Ethics Opinion File No. EO-19-0003
The Attorney Ethics Advisory Committee was created in accordance with Rule 42.1 and Administrative Order Nos. 2018-110 and 2019-168.
When a lawyer engages a social worker to provide services in connection with a representation,
and when such services are or may be subject to the mandatory reporting requirement of Arizona
Revised Statute 13-3620, the lawyer must advise the client that the social worker may be obligated
by law to report physical injury, abuse, or neglect of a minor when the lawyer is not otherwise
required to do so. It is the decision of the client whether to utilize the services of the social worker.
In contrast, when a lawyer retains a social worker solely to assist the lawyer in a non-treatment
capacity and the social worker has no mandatory reporting requirement, the lawyer must take
reasonable steps as to ensure that the social worker’s conduct is compatible with the lawyer’s
professional obligations including the lawyer’s responsibility to maintain the confidentiality of
information relating to the client representation.
Issue Presented:
What are the ethical duties of a lawyer supervising a non-lawyer professional who may
have a statutory obligation to report offenses against minors?
Factual Background:
An agency provides legal and social services to victims of crime. The agency employs
lawyers and social workers who work closely together to provide holistic services to
victims. The duties of the social worker focus primarily on enhancing the agency's
representation. They provide emotional and crisis support to victims, inform victims of
court dates, explain steps, and accompany victims to court.
The lawyers represent victims at hearings. The lawyers work with prosecutors, law
enforcement, defense counsel, and others involved in criminal justice to ensure the rights
of victims are upheld.
In Arizona, under Arizona Revised Statutes Section 13-3620, a social worker must report
suspected physical injury, abuse, child abuse, a reportable offense, or neglect to a law
enforcement agency, tribal social services, or the Department of Child Safety. There are
certain exceptions.
In working with a social worker, a client may disclose an instance of physical injury, abuse,
child abuse, a reportable offense, or neglect that does not lead to death or substantial bodily
injury. A client may reveal past abuse by a non-client.
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Applicable Arizona Rules of Professional Conduct
ER 1.0 Terminology
***
(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct
after the lawyer has communicated adequate information and explanation about the
material risks of and reasonably available alternatives to the proposed course of conduct.
ER 1.2 Scope of Representation and Allocation of Authority Between Client and
Lawyer
(a) [A] lawyer shall abide by a client’s decisions concerning the objectives of
representation and, as required by ER 1.4, shall consult with the client as to the means
by which they are to be pursued.
***
ER 1.4 Communication
(a) A lawyer shall:
***
(2) Reasonably consult with the client about the means by which the client’s objectives are
to be accomplished;
(3) Keep the client reasonably informed about the status of the matter;
***
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation.
***
ER 1.6 Confidentiality of Information
A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry of
the representation or the disclosure is permitted or required by paragraphs (b), (c) or (d) or
ER 3.3(a)(3).
***
ER 5.3 Responsibilities Regarding Nonlawyers
(a) A lawyer in a firm shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that the conduct of nonlawyers engaged in
activities assisting lawyers in providing legal services and those who have access to
attorney-client information, is compatible with the professional obligations of the
lawyer. Reasonable measures include, but are not limited to, adopting and enforcing
policies and procedures designed:
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(1) to prevent nonlawyers in a firm from directing, controlling, or materially limiting
the lawyer’s independent professional judgment on behalf of clients or materially
influencing which clients a lawyer does or does not represent; and
(2) to ensure that nonlawyers assisting in the delivery of legal services or working
under the supervision of a lawyer comport themselves in accordance with the
lawyer’s ethical obligations, including, but not limited to, avoiding conflicts of
interest and maintaining the confidentiality of all lawyer client information
protected by ER 1.6.
(b) A lawyer having supervisory authority over a nonlawyer within or outside a firm shall
make reasonable efforts to ensure that the nonlawyer’s conduct when engaged in
activities assisting lawyers in providing legal services is compatible with the
professional obligations of the lawyer.
(1) Reasonable efforts include providing to nonlawyers appropriate instruction and
supervision concerning the ethical aspect of the employment or retention,
particularly regarding the obligation not to disclose information relating to the
representation of the client.
(2) Measures employed in supervising nonlawyers should take into account that they
may not have legal training and are not subject to professional discipline.
(3) When retaining or directing a nonlawyer outside the firm to assist the lawyer’s
delivery of legal services, a lawyer should communicate directions appropriate
under the circumstances to give reasonable assurance that the nonlawyer’s conduct
is compatible with the professional obligations of the lawyer.
Relevant Ethics Opinions
District of Columbia Bar, Legal Ethics Committee Opinion 282 (June 1998)
OPINION
The Committee was presented with the question of whether a social worker, in connection with a
lawyer’s representation of a client, can break confidentiality and report the suspected physical
injury, abuse, child abuse, reportable offense, or neglect pursuant to Arizona’s mandatory
reporting statutes. The statutory requirement in question is A.R.S. §13-3620(A), stating that ,
“[a]ny person who reasonably believes that a minor is or has been the victim of physical
injury, abuse, child abuse, a reportable offense or neglect . . . shall immediately report
or cause reports to be made of this information . . . .” A.R.S. §13-3620(A)(1) further
defines “person” as “[a]ny physician, physician’s assistant, optometrist, dentist
osteopathic physician, chiropractor, podiatrist, behavioral health professional, nurse,
psychologist counselor or social worker who develops the reasonable belief in the
course of treating a patient.”
The Rules of Professional Conduct apply to the provision of legal services, and, therefore, the
Committee is constrained to addressing questions of legal ethics and cannot decide the extent of a
social worker’s obligations under the mandatory reporting statute.
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Every lawyer owes his or her client a duty of confidentiality under ER 1.6. A lawyer shall not
reveal information relating to the representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is
permitted by the Rules. 1
In many instances, a lawyer works in connection with nonlawyer assistants, who provide support
to the lawyer in his or her practice. When a nonlawyer is employed, retained by, or associated
with a lawyer, ER 5.3 requires the lawyer to make reasonable efforts to ensure that the nonlawyer’s
conduct is compatible with the lawyer’s professional obligations including the lawyer’s
responsibility to maintain the confidentiality of information relating to the client representation.
According to the Rules of Professional Conduct, a lawyer has supervisory obligations and
responsibilities when associating with nonlawyers. ER 5.3(a) requires a lawyer to make reasonable
efforts to ensure that the firm has in effect measures giving reasonable assurance that a nonlawyer’s
conduct is compatible with the professional obligations of the lawyer. Likewise, a lawyer having
supervisory authority over a nonlawyer must make a reasonable effort to ensure that the
nonlawyer’s conduct when engaged in activities assisting lawyers in providing legal services is
compatible with the lawyer’s professional obligations. ER 5.3(b). ER 5.3(b)(1) provides that
reasonable efforts include providing to nonlawyers appropriate instruction and supervision
concerning the ethical aspects of their employment or retention, particularly regarding the
obligation not to disclose information relating to representation of the client. The measures
employed in supervising nonlawyers should take account of the fact that they may not have legal
training and are not subject to professional discipline. ER 5.3(b)(2). ER 5.3(b)(3) recognizes that
these obligations extend to a nonlawyer outside of the firm as well.
Given these obligations, the lawyer has an affirmative duty to make a reasonable effort and
reasonably assure that a nonlawyer assisting the lawyer is aware of the lawyer’s duty of
confidentiality regarding the matter, and that the duty of confidentiality extends to the nonlawyer
as well. Not ensuring that such measures are in place, or allowing the nonlawyer to violate the
Rules, could result in the lawyer being disciplined for the failure to supervise the nonlawyer if the
“lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved;
or . . . knows of the conduct at a time when its consequences can be avoided or mitigated but fails
to take reasonable remedial action.” ER 5.3(c), see also In re Phillips, 226 Ariz. 112, 244 P.3d 549
(2010) (reasonable efforts to ensure that the firm has in effect measures giving reasonable
assurances that a nonlawyer employed by the firm or associated with the lawyer comply with the
professional obligations of the lawyer requires not only supervision but also that the supervising
lawyer establishes internal policies and procedures).
In situations where a lawyer employs, retains, or is associated with a nonlawyer individual who is
subject to a mandatory reporting statute, the lawyer remains obligated by ER 1.6 to maintain client
1
For purposes of addressing the requestor’s question, the Committee assumed that no exception in ER 1.6
applied to the lawyer and therefore, the lawyer was not required to report suspected abuse or neglect.
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confidentiality. Likewise, the nonlawyer involved is also generally obligated to maintain ER 1.6
confidentiality by operation of ER 5.3. However, the nonlawyer may be required to breach
confidentiality to comply with the mandatory reporting obligation.
Accordingly, given the mandatory reporting requirements some nonlawyers may have, the
supervising or employing lawyer has an ethical obligation to the client whose matter is potentially
impacted by a reporting requirement. More specifically, the lawyer is obligated to ensure Rule
compliance to the extent permissible (including confidentiality) by the nonlawyer individual
regarding information not subject to mandatory reporting, to inform any possibly affected client
of the confidentiality limits and risks created by the involved nonlawyer’s statutory reporting
obligations and to ascertain the client’s informed consent as to whether to proceed with the use of
such a nonlawyer given the risk it presents to some aspects of the confidentiality of the client’s
matter.
Because the possibility of disclosure by a nonlawyer statutory reporter poses a serious risk to the
confidentiality of a client matter, it is imperative that the lawyer, at either the inception of
representation or at the time of involving a nonlawyer subject to a mandatory reporting
requirement, informs the client of the confidentiality duties of the lawyer and its extension to the
nonlawyer, as well as the limitations on those duties and the risk posed by possible mandatory
reporting. When discussing the risks associated with the use of a nonlawyer subject to a mandatory
reporting statute, it is vital that the client receives adequate information that would allow the client
to give informed consent. “Informed consent” denotes the agreement by a person to a proposed
course of conduct after the lawyer has communicated adequate information and explanation about
the material risks of and reasonably available alternatives to the proposed course of conduct. ER
1.0(e).
In addition, the general client communication requirements of ER 1.4 requires a lawyer to advise
a client, in advance, of the risk that information—that may otherwise be protected under ER 1.6—
may have to be disclosed by a nonlawyer with a mandatory reporting obligation. Such information
is necessary for a client to be reasonably informed about the status of his or her matter, such that
the client can make an informed decision regarding the case. See ER 1.4(a), ER 1.4(b).
ER 1.4(a)(2) requires a lawyer to reasonably consult with the client about the means by which the
client’s objectives are to be accomplished, and ER 1.2(a) directs that a lawyer abide by a client’s
decisions concerning the objectives of representation and consult with the client as to the means
by which the objectives of representation are to be pursued. The risk posed to client confidentiality
by a mandatory reporter’s potential obligation to reveal information is serious enough that a client
should be fully informed of the potential risk and presented with the decision whether to proceed
with taking that risk in furtherance of the representation. Once the client has been advised of the
risks associated with involving a nonlawyer with a mandatory reporting obligation, the client
should be permitted to make, and the lawyer should confirm with the client, the decision whether
to proceed with the utilization of such a nonlawyer. 2
2
If the client determines that the representation should not continue with the use of the social worker, the
firm should take steps to eliminate access to the client’s matter. The process to do so depends on the
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Neither informed consent nor ER 1.4 require a writing memorializing the discussion with the
client. However, it is advisable that at or about the time of the communication, the lawyer create
a writing that adequately describes the nature of the communication with the client, including the
risk to the confidentiality of the client’s matter. This document should be signed by the client and
retained by the lawyer.
The District of Columbia Bar addressed a similar question from an association of social workers
who sought guidance about the obligation of a social worker who is employed by or acting as a
consultant to a lawyer in the course of representing a client. “Under D.C. Code §2-1352, social
workers and certain other professionals who reasonably suspect that child abuse or neglect has
taken place must ‘immediately’ report the suspected abuse to the Metropolitan Police department
or to the Child Protective Services Division of the Department of Human Services.”
The District of Columbia Bar concluded that a lawyer who engages a social worker to provide a
service in connection with the representation of a client must inform the client that the social
worker may be required under law to report suspected child abuse or neglect, and, although the
lawyer must ensure that the persons employed by the lawyer preserve client confidences, other
laws may require the social worker to report abuse or neglect. 3 It is then the client’s decision
whether to proceed with the use of the social worker. 4
In conclusion, the inquiring lawyer who employs a social worker in connection with the
representation of a client must advise the client that the social worker may be required by law to
report physical injury, abuse, child abuse, a reportable offense, or neglect of a minor when the
lawyer is otherwise prohibited from disclosing the client’s confidences. It is the client’s decision
whether to proceed with the use of the social worker.
systems in place in the firm. For example, if the firm keeps paperless files, the social worker’s permissions
to that file should be revoked/restricted. If the firm keeps paper files, the file should have some advisory
on it to denote restricted access and should not be kept in a central file location where the social worker
may inadvertently come across the file. Additionally, proper instructions should be given to support staff
that serve both the lawyer and the social worker that the social worker should have no access to the file.
Given the physical set up of the workspace, consideration should be given to whether general discussions
regarding the client may be heard by the social worker.
3
Following the issuance of District of Columbia Bar Legal Ethics Opinion 282 (1998) District of Columbia
Code §4-1321.02 was enacted and addressed the issue that was the subject of the opinion. “Such persons
are not required to report when employed by a lawyer who is providing representation in a criminal, civil,
including family law, or delinquency matter and the basis for the suspicion arises solely in the course of
that representation . . . .” Other states have taken a converse position, specifically, Tennessee mandates,
through Tennessee Code §37-1-403, that anyone with knowledge of child neglect or abuse is required to
report the information and the lawyer shall reveal such information to “comply with other law” which is an
exception to ER 1.6.
4
Also noted in the opinion is that the lawyer should not provide legal advice to the social worker regarding
a reporting obligation under the statute because the lawyer’s duty to the client to assure protection of
confidences prevents giving any contrary opinion to the social worker. See ER 1.7(a) In addition, the lawyer
should not request that the social worker ignore a provision of the law mandating the reporting of child
abuse or neglect.
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