"Are Lawyers Different? — Professional Resistance, Mandated Child Abuse Reporting and the Duty of Confidentiality"

Abstract

Overview: Anxiety about child abuse combined with a general trend towards placing the responsibility for crime control in the hands of the public has led to a variety of changes in the laws surrounding child abuse and sexual violence. This essay considers one of these policy innovations — mandatory reporting laws — in light of the professional duty of confidentiality to which attorneys must adhere, or risk censure.1 California did not pass an explicit exception to allow attorneys to violate confidentiality until 2004, while other professions such as medicine, the clergy and social work surrendered to a mandated reporting system much earlier. Are lawyers different? After considering the arguments for and against maintaining attorneys’ discretion to violate confidentiality, as well as the efficacy of mandated reporting, I argue that such discretion should be preserved and perhaps returned to other professions.