If a lawyer hires a social worker who is legally required to report suspected child abuse, what must the lawyer tell the client and the social worker about confidentiality?

Plain-English summary

Opinion 282 (adopted June 17, 1998) answered a question posed by an association of social workers: what happens when a social worker employed by or consulting with a lawyer learns of suspected child abuse and is required by D.C. Code Section 2-1352 to report it "immediately," even though that statute does not list lawyers among the professionals required to report. The committee noted it could not decide the scope of the social worker's statutory duty, so it focused on the lawyer's ethics.

The committee treated the social worker as a nonlawyer assistant under Rule 5.3, which requires the lawyer to take reasonable measures to ensure that assistants comply with the lawyer's professional obligations, and noted that Rule 1.6(e) requires the lawyer to exercise reasonable care to prevent employees from disclosing client confidences and secrets. It then examined whether the "required by law" exception in Rule 1.6(d)(2) lets the social worker disclose. The committee concluded it does not: the exception in Rule 1.6(e) for disclosures by employees is "strictly derivative" of the lawyer's own exceptions in Rules 1.6(c) and (d), so an employee may disclose only where the lawyer could, and the rule does not authorize an employee to disclose under a law that does not apply to the lawyer.

The committee acknowledged this reading creates a quandary, because the rules cannot insulate a social worker from duties imposed by other law; the lawyer's duty of reasonable care therefore cannot extend to preventing the social worker from reporting child abuse as the statute mandates. It resolved the tension through disclosure to the client. Citing Rule 1.4(b), the committee concluded that before bringing a social worker into the representation, the lawyer must inform the client that the social worker may have a statutory duty to report child abuse that is inconsistent with the confidentiality duty, must explain that the worker may in fact report information, and must leave it to the client to decide whether to proceed. The committee added that the lawyer should inform the social worker of the lawyer's Rule 1.6 obligations, but should not advise the social worker on the reporting statute (citing the Rule 1.7(a) conflict in giving such advice) or ask the social worker to ignore the law.

Currency note

This opinion was issued in 1998, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did the opinion say the "required by law" exception lets the social worker report?

A: No. The committee concluded that Rule 1.6(e)'s exception for employee disclosures is strictly derivative of the lawyer's own exceptions, so an employed social worker may disclose confidences only where the lawyer could, and not under a statute that does not apply to the lawyer.

Q: Does that mean the lawyer must stop the social worker from reporting?

A: No. The committee concluded the rules cannot insulate the social worker from a duty imposed by other law, so the lawyer's duty of reasonable care does not extend to preventing the social worker from making a statutorily mandated report.

Q: What did the opinion require the lawyer to tell the client?

A: Under Rule 1.4(b), the committee concluded the lawyer must, before involving the social worker, inform the client that the worker may have a statutory duty to report child abuse inconsistent with confidentiality and may in fact report, and leave the decision whether to proceed to the client.

Q: What did the opinion say about advising the social worker?

A: The committee concluded the lawyer should inform the social worker of the lawyer's Rule 1.6 confidentiality obligations, but should not give the social worker legal advice about the reporting statute or ask the social worker to ignore it.

Background and rules framework

The opinion interpreted D.C. Rule 1.6 (confidentiality of information, including the Rule 1.6(d)(2) "required by law" exception and the Rule 1.6(e) duty of reasonable care over employees) together with Rule 5.3 (responsibilities regarding nonlawyer assistants), and relied on Rule 1.4(b) (explaining a matter so the client can make informed decisions) and Rule 1.7(a) (conflict in advising the social worker contrary to the client's interest). It distinguished D.C. Ethics Opinion 219, which involved a disclosure duty placed directly on the lawyer.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.6(d)(2), (e) / Model Rule 1.6 (confidentiality; required-by-law exception; care over employees)
• D.C. RPC 5.3 / Model Rule 5.3 (responsibilities regarding nonlawyer assistants)
• D.C. RPC 1.4(b), 1.7(a), 3.3(d) / Model Rules 1.4, 1.7, 3.3 (informing the client; conflicts; candor)

Statutes:

• D.C. Code Section 2-1352 (mandatory child-abuse and neglect reporting)
• D.C. Code Section 16-2301(9) (definition of abused or neglected child)

Other opinions cited:

• D.C. Ethics Op. 219 (disclosure required of the lawyer by PTO regulation)

See also

• DC Ethics Op. 288: Congressional Subpoena for Client Files
• DC Ethics Op. 285: Screening Ex-Government Nonlawyers
• ABA Formal Op. 08-451: Outsourcing Legal Services

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-282