When must a lawyer break client confidentiality to report that a client is abusing, or failing to protect, the client's child?

Plain-English summary

Opinion E-88-11 asked under what circumstances a lawyer must report information relating to the abuse of a client's child to appropriate authorities. The committee concluded that if the abuser is the client and the lawyer reasonably believes the abuse will continue in spite of the lawyer's efforts to encourage the client to desist and to seek appropriate counseling, the lawyer must report the necessary information, whether or not the client consents, to prevent the commission of a continuing crime involving likely substantial bodily or emotional harm. It grounded that duty in SCR 20:1.6(b) and referred to Wis. Stat. sections 940.201 and 940.203 (1985-86).

The committee then explained how the duty had expanded. It observed that under SCR 20:1.6(b) a lawyer can only make disclosures relating to a client's intent to commit a crime, and that before State v. Williquette a parent's failure to protect his or her children had not been held to be a crime, so a lawyer could not have disclosed information about abuse by someone other than the client without consent. After Williquette, the committee noted, such passive conduct may constitute a crime under section 940.201 or section 940.34, Stats. (1985-86), so a lawyer's post-Williquette duty to report child-abuse information, where the abuse is reasonably believed likely to continue, derives from the probability of a passive client's exposure to criminal prosecution rather than only the actual abuser's. The committee pointed readers to contemporary commentary discussing the issue.

Currency note

This opinion was issued in 1988, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). The confidentiality rule SCR 20:1.6 and its disclosure provisions, and the statutes the opinion cites, may have since been amended or renumbered. 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 Treat this page as historical context, not current guidance.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: Must a lawyer report that a client is abusing the client's own child?

A: Per the opinion, yes, where the client is the abuser and the lawyer reasonably believes the abuse will continue despite the lawyer's efforts; SCR 20:1.6(b) then requires reporting to prevent a continuing crime, even without consent.

Q: What about a parent who is not the abuser but fails to stop it?

A: The committee concluded that after State v. Williquette a passive parent's failure to protect a child may itself be a crime, so the lawyer's reporting duty can arise from that parent's exposure to prosecution.

Q: Does the client's consent matter?

A: No, where the conditions are met. The committee concluded the lawyer must report the necessary information whether or not the client consents under SCR 20:1.6(b).

Background and rules framework

The opinion interpreted SCR 20:1.6 / Model Rule 1.6 (confidentiality of information), and specifically the mandatory-disclosure provision SCR 20:1.6(b) for preventing a client's criminal act likely to cause substantial harm, read together with Wisconsin's child-abuse statutes (Wis. Stat. sections 940.201, 940.203, 940.34 (1985-86)) and State v. Williquette.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.6(b) / Model Rule 1.6 (confidentiality; mandatory disclosure)

Statutes:

• Wis. Stat. sections 940.201, 940.203, 940.34 (1985-86) (child abuse)

Cases:

• State v. Williquette, 129 Wis. 2d 239, 385 N.W.2d 145 (1986), passive-parent liability for child abuse

See also

• WI Ethics Op. E-89-9: Discretion to Disclose
• WI Ethics Op. E-88-10: Client Fraud in a Land Sale
• WI Ethics Op. E-89-11: Confidences of a Deceased Client

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-88-11.pdf