If a lawyer learns a child has been abused, does the duty of confidentiality or Nevada's mandatory child-abuse reporting statute control?

Plain-English summary

The request came from a bar member who directs a non-profit legal services organization representing minors and adults in child welfare, juvenile court, and death-penalty matters. The organization is co-directed by a licensed attorney and a licensed social worker and staffed by SCR 49.5-certified law students and social-work graduate students who assist the legal team. The question was how to reconcile the lawyer's duty of confidentiality under the Supreme Court Rules with Nevada's statutory child-abuse reporting requirements in NRS chapter 432B.

The Committee restated the request as three issues. First, when a lawyer, legal assistant, or law-student attorney learns or has reasonable cause to believe a child has been abused or neglected, is the person bound by the reporting requirement in NRS 432B.200 or by the confidentiality rule? The Committee answered that SCR 156 required keeping such information confidential insofar as it relates to the representation, subject to two narrow exceptions: SCR 156(3) permits disclosure to prevent or rectify the consequences of a client's criminal act only when the lawyer's services were used in the crime, and SCR 156(2) and NRS 432B.220 require disclosure when the lawyer reasonably believes it necessary to prevent the client from committing a criminal act likely to result in imminent death or substantial bodily harm. The Committee found that a real conflict remains: the attorney's failure to disclose does not violate SCR 156, but the duty of confidentiality may be an inadequate defense to a misdemeanor prosecution for failing to report under NRS chapter 432B, because the reporting statute's exception for attorneys (information acquired from a client who is or may be accused of the abuse) is narrower than the confidentiality rule.

Second and third, the Committee concluded that the social-work students perform work traditionally done by a legal assistant and provide no services directly to clients, so they are "legal assistants" for purposes of SCR 156 and are bound by the attorney's duty of confidentiality, and they are bound by the statute and SCR 156 to the same extent as the lawyer. The opinion canvassed the legislative history of NRS 432B.220 (added in 1985) and analogous conflicts, including the Washington State Bar's treatment of the SEC's Sarbanes-Oxley reporting rules, where reporting was permissive rather than mandatory. It concluded that it is beyond the committee's authority to definitively resolve the conflict, but that because the Nevada Supreme Court has made no exception to SCR 156 that would absolve an attorney for a disclosure required by statute, SCR 156 continues to apply equally to confidential information both within and outside the scope of the mandatory reporting law. There is no reliable basis to conclude either that a statute-required disclosure would be immune from discipline or that a failure to report would be excused by confidentiality, leaving the organization's lawyers, legal assistants, and law-student attorneys exposed to violating one or the other for information that falls in the gap. The Committee stated its belief that the most likely resolution would favor preserving attorney-client confidentiality.

Currency note

This opinion was issued in 2005, before the State Bar of Nevada's adoption of the Nevada Rules of Professional Conduct (effective 2006). It interprets former Supreme Court Rule 156, the predecessor to current NRPC 1.6. The opinion itself noted that the then-pending Ethics 2000 petition (ADKT No. 370) proposed adding to SCR 156 the exception "to comply with other law or court order," and observed that adopting that exception (which tracks Comment [10] to ABA Model Rule 1.6) would resolve the conflict, because reporting child abuse would then be a disclosure "to comply with other law." Subsequent rule amendments or later opinions may have changed this analysis. Treat this page as historical context, not current guidance, and verify against the current NRPC before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did this opinion say a lawyer must report suspected child abuse learned during a representation?

A: Under the rules it interpreted, not as a matter of the confidentiality rule: the Committee concluded that an attorney's failure to disclose does not violate SCR 156, but it warned that confidentiality may be no defense to a misdemeanor prosecution for failing to report under NRS 432B.220.

Q: Why did the Committee call the conflict unresolved?

A: Because the reporting statute's attorney exception (information from a client who is or may be accused) is narrower than the confidentiality rule, so some information is confidential under SCR 156 yet still subject to mandatory reporting, leaving the lawyer exposed to violating one rule or the other.

Q: Are social workers or social-work students on a legal team bound by the lawyer's confidentiality duty?

A: Yes. The Committee concluded they are "legal assistants" for purposes of SCR 156, performing work like a paralegal, and are bound by the attorney's duty of confidentiality and by the statute to the same extent as the lawyer.

Background and rules framework

The opinion interprets former SCR 156 (confidentiality of information; now NRPC 1.6) and former SCR 187 (responsibilities regarding nonlawyer assistants; now NRPC 5.3), against Nevada's mandatory child-abuse reporting statutes (NRS 432B.200, 432B.220, 432B.230, 432B.240, 432B.250) and the attorney-client and social-worker privileges in NRS chapter 49 (NRS 49.095, 49.252).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Nev. SCR 156 (now NRPC 1.6) (confidentiality of information)
• Model Rule 5.3 / Nev. SCR 187 (now NRPC 5.3) (responsibilities regarding nonlawyer assistants)

Statutes:

• NRS 432B.220 (mandatory reporting of child abuse; attorney exception)
• NRS 432B.240, 432B.250 (misdemeanor for failure to report; bar on asserting chapter 49 privilege as a defense)
• NRS 49.095, 49.252 (attorney-client and social-worker privileges)

Cases:

• McKay v. Board of County Commissioners, 103 Nev. 490, 746 P.2d 124 (1987)
• Minton v. Board of Medical Examiners, 110 Nev. 1060, 881 P.2d 1339 (1994)

See also

• NV Ethics Op. 49: an attorney who is also a licensed clinical social worker
• NV Ethics Op. 41: the scope of confidentiality under Rule 1.6

Source

• Landing page: https://nvbar.org/for-lawyers/ethics-discipline/ethics-opinions/
• Original PDF: https://nvbar.org/wp-content/uploads/opinion_30.pdf