Abstract

Attorneys who suspect or discover an incident of child abuse in representing a client are governed by three conflicting guidelines: the attorney-client (evidentiary) privilege, ABA Model Rule 1.6, and mandatory child abuse reporting statutes. Although this dilemma is noted in law school curricula, this Article argues that its normative complexity is underestimated in legal ethics scholarship. In fact, this age-old dilemma is a symptom of deep philosophical disagreement, which is why (1) the debate is so wide-ranging and (2) policy-making bodies have yet to offer an agreeable resolution. Disagreement at the most abstract level, among philosophers and legal scholars, influences decisions regarding child abuse disclosure by attorneys at the most micro level: judicial proceedings.

This Article develops an “Agency-Capability” approach, premised on Martha Nussbaum’s Capability Theory, and applies it in four commonly raised dilemmas. Model 1: Domestic Violence Victim entails the case of a battered woman whose child is also the victim of abuse at her partner’s hands; Model 2: Unrelated Issue involves a lawyer representing an abusive client in a matter unrelated to parental fitness, e.g., an employment dispute; Model 3: Dependency/Divorce/Relocation discusses the case of lawyers representing parent-clients in matters relating to parental fitness, i.e., custody, marital, and child welfare disputes; and Model 4: Juvenile Client-Victim examines the case of a teen victim of abuse in a delinquency proceeding. Rather than prematurely locking attorneys into one value system, this contextualist approach to legal ethics emphasizes a lawyer’s discretion directed towards maximizing the capabilities of the various parties involved.

Keywords

child abuse disclosure, agency-capability, attorney disclosure