97 N.J.L.J. 753
October 3, 1974
OPINION 280 (Supplement)
Lawyer-Client Privilege Revealing
Child Abuse to Children's Bureau
This Committee's opinion in the above was published May 16,
1974, 97 N.J.L.J. 361. We held that the attorney-client privilege
precluded disclosure by a mother's attorney to the children's
bureau of evidence tending to show his client's unfitness, viz.
previous acts of abuse of the child concerned.
This Committee has been asked a further question. Does the privilege rule apply where the attorney for the mother has knowledge of his client's activities, physical condition, or mental
attitude, of a continuing nature, such as in the attorney's judgment would tend to demonstrate the continued propensity of the mother to abuse the child.
Child abuse and neglect of children are a grave current problem. It is the number one child killer and reported cases appear to constitute only 5% of the actual cases. The cost to society in dealing with the adult who suffered an abused childhood is incalculable. As a consequence, the State of New Jersey operates a Division of Youth and Family Services that is required by law and is ready to investigate all reported cases of child abuse within 72 hours. Child abuse control centers are in operation in key areas.
It is obvious that a judgment of parental fitness requires consideration of the ongoing or continuing qualification of the person under scrutiny. The issue is, "Will he or she properly care for this child?" Past conduct, while persuasive on this issue, may have been excusable. The court has to determine fitness "now" and "in time to come." If the facts show a propensity to child abuse nature of the matter should be weighed in any proceeding on fitness The attorney-client privilege runs counter to the policy of full disclosure. In re Richardson, 31 N.J. 391 (1960). Application of the privilege rests on the policy that a client must be free to disclose all to his attorney. In New Jersey the rule is found in N.J.S. 2A 84A-20. Paragraph 2 makes clear that it does not apply where the communication is obtained in the course of legal services sought in aid of commission of a crime or a fraud. Hence, where an attorney who is representing a parent on child abuse learns, in whatever manner, that the pursuit of the client's objective to maintain parental control will probably constitute fraud on the court in misrepresenting the parent's continuing fitness, the privilege cannot apply. Where the facts disclose a continuing propensity to unfitness, the analogy to fraud is clear. The attorney-client privilege should be sparingly applied. Attorneys are in the profession of law - justice is the guiding light. A narrow application of the policy may bring more clients to attorneys but it will hardly enhance bases for law and order.
This Committee has reviewed the policy considerations fully in Opinion 116, 90 N.J.L.J. 688 (1967). In that opinion we referred to 8 Wigmore, Evidence sec. 2291, (1961). A reading of that material and sec. 2290 shows the ancient history of this privilege: In its earliest days it was a "point of honor" of the attorney. It remained an anomaly and "its obstruction to justice is plain and concrete." Wigmore points out in sec. 2291 how the privilege has changed, and comments that with modern discovery the disclosure of admission made to an attorney would add little to the proof except so far as a client is capable of perjury. In our Opinion 116, supra, we said that the privilege does not apply to continuing crimes or crimes to be committed. This is the law - In re Callan, 122 N.J. Super. 479 (Ch. Div. 1973).
To the extent that a child abuse inquiry is of different character from the commission of a bank robbery, or defrauding stockholders, it may be considered sui generis. The State's concern
in child welfare raises policy considerations different from those involved in the usual criminal or civil case. A child abuse case is a matter calling for the proper protection and custody of the child. Punishment of the offender may be a separate issue for a separate proceeding. Application of the above privilege in a custody issue must necessarily be different when applied to a criminal or civil case. To the extent that public safety is a consideration, the State's effort to aid the development of abused children into law-abiding citizens is a public-safety concern. Compare State v. Briley, 53 N.J. 498 (1969), where the court stressed the importance of applying the test of service to the greater public interest in privilege matters.
For the above reasons it is our opinion that where an attorney for a parent has facts that demonstrate a propensity of that parent to engage in child abuse and hence the continuing unfitness of that parent to raise its child, the attorney-client privilege does not apply and the information must be provided to the Children's Bureau.