97 N.J.L.J. 361
May 16, 1974
Lawyer-Client Privilege Revealing
Child Abuse to Children's Bureau
An advisory opinion has been requested as to the obligations
of an attorney to the court under the following set of facts.
Mrs. A has had custody of her children Challenged by a state agency, the Bureau of Children's Services, which asserts rights to temporary and permanent custody of the children pursuant to N.J.S.A. 30:4C-11, 12 and 15, and related law. After he was retained by Mrs. A in connection with the Bureau of Children's Services proceeding, it came to the attention of Mrs. A's attorney that Mrs. A has, in the past, focally abused the children and has engaged in other conduct toward the children which raises questions as to her fitness as a mother. It is probable that the children's best interests would be promoted by revealing the situation to the Bureau of Children's Services, which does not have knowledge of it.
At odds are society's obvious interest in protecting the welfare of helpless children and the sanctity of the attorney client relationship. Legal services projects constantly face dilemmas of the kind posed, as they seem to draw a large portion of the defendant parents in Bureau of Children's Services cases.
Should the attorney reveal the situation to the Bureau of Children's Services, or is he prevented from doing so by reason of the attorney client privilege? If the answer is in the affirmative, is the attorney under an obligation to investigate the facts before disclosing them to the Bureau of Children's Services.
In our Opinion 116, 90 N.J.L.J. 688 (1967), we reviewed the obligation of an attorney to the court as to confidential data received from a client. We reviewed the clash between the two competing policies of law, one to see that justice prevails, and the other to preserve the confidential data given to the attorney.
The social agencies investigating this case were alerted to the abuses to the child and these facts should have been set forth in their report to the court. Disciplinary Rule 4-101(B)(2) provides that an attorney shall not knowingly use a confidence or secret of his client to the latter's disadvantage. Nor shall an attorney prejudice a client's cause during the course of the professional relationship. DR 7-101(A)(3).
The privilege is not an absolute one as indicated by Wise, Legal Ethics 277 (1970), where exceptions to the doctrine are set forth. In Drinker, Legal Ethics 137 (1953), it is stated that an exception assets where disclosure is essential to the public safety. A.B.A. Standing Committee on Professional Ethics, Informal Opinion 869 (1965) dealt with the propriety of disclosure by an attorney of facts possibly setting forth defenses to custody in a divorce action, and other facts relevant to the control and custody of a child. The specific facts were that the wife had become pregnant by another man. The opinion stated that the best welfare of the children was for the court to decide, and the court should have all available information, subject only to the attorney client privilege.