Attorney Client Privilege vs. CASA Confidentiality

This article did a great job at explaining attorney client privilege. This can sometimes be a very confusing concept, and this article helps to explain when it does and does not apply.

This, however, if very different from the CASA confidentiality standards. How so? Let’s explain. An advocate is compelled to share what they hear with the right people. Who are those people? Always CASA staff. If a CASA hears something concerning their first step is to call the CASA case manager or executive director. Next, if the information could lead to someone being hurt, something CASA refers to as ‘risk of harm’, or breaks a law/court order to CASA’s knowledge, the information has to be called in to the DCFS hotline. If the information is still concerning but not imminently so, the caseworker should be informed.  The difference?

Example A-

*Susie and her mother have been separated due to the Court’s decision to take Temporary Custody of the toddler female minor, due to the mother using and selling heroin in front of the child. The child, placed with a grandparent, tells the advocate that she has seen her mother overnight on the weekend. The advocate knows that the mother is supposed to have no unsupervised contact with the child and certainly no overnight visits.

What would a CASA do?

The CASA would immediately inform both the caseworker and CASA staff. The CASA would not question the child in detail but, after speaking with CASA staff, may ask the foster parent about visits with the mother- Are they going well? How often are they occurring? Does the child talk about visits? Has the mother asked about extended visits or overnights? Have the foster parents talked to their caseworker about these requests? The CASA would write down the child’s allegations and include them in the next court report for the Judge to read as well. CASA may make recommendations that drop-in unannounced visits to the foster home increase to make sure the child is where she is expected to be.

Example B-

*While visiting Susie in her foster home a CASA advocate sees a hyperactive Susie push her grandparents’ new television over, cracking the screen. Grandma reacts quickly, pulling Susie by her arm to her bedroom. The CASA does not witness Susie’s disciplining but hears a thwacking sound, quickly following by Susie’s sharp cries. When Susie leaves her timeout she has a visible red mark on her cheek.

What would CASA do?

The advocate would immediately call CASA staff, who would direct him/her to call the abuse hotline. The CASA would relay everything that was heard and seen to the hotline operator. The CASA would then write down what happened for inclusion in the next report. If, after the investigation was begun, the child was not removed from this foster placement the CASA office would request that the attorney file a motion for a hearing to discuss the implications of the event. The CASA would not question the foster parent or child about what happened. This would be the DCFS investigator’s job.

*These examples are not based on case information and are fictitious.

While information is shared freely with the CASA office and often with the caseworker and CASA attorney, only these protected parties are able to receive information from the CASA advocate. An advocate is not free to discuss any case details; names, presenting problems, addresses, diagnoses, etc. with friends or family. Even leaving out the name of clients is not enough. All case information is sealed, confidential knowledge that CASAs are sworn to guard in their role as an officer of the court. CASAs serve in a role to take in information and report it to the judge and staff. CASAs do not give out information as a rule.

The Attorney-Client Privilege

Most, but not all, of what you tell your lawyer is privileged.

The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients’ secrets, nor may others force them to. The purpose of the privilege is to encourage clients to openly share information with their lawyers and to let lawyers provide effective representation.

The Client’s Privilege

Generally, the attorney-client privilege applies when:

  • a client (actual or prospective) communicates with a lawyer regarding legal advice
  • the lawyer is acting in a professional capacity (rather than, for example, as a friend), and
  • the client intended the communications to be private and acted accordingly.

Lawyers may not reveal communications with clients (oral or written) that clients reasonably expect to remain private. A lawyer who has received a client’s confidences cannot repeat them to anyone outside the legal team without the client’s consent. In that sense, the privilege is the client’s, not the lawyer’s—the client can decide to forfeit (or waive) the privilege, but the lawyer cannot.

The privilege stays in effect even after the attorney-client relationship ends, and even after the client dies. In other words, the lawyer can never divulge the client’s secrets without the client’s permission, unless some kind of exception (see below) applies. (United States v. White, 970 F.2d 328 (7th Cir. 1992); Swidler & Berlin v. United States, 524 U.S. 399 (1998).)

In Contrast: The Duty of Confidentiality

The attorney-client privilege is, strictly speaking, a rule of evidence. It prevents lawyers from testifying about, and from being forced to testify about, their clients’ statements. Independent of that privilege, lawyers also owe their clients a duty of confidentiality. The duty of confidentiality prevents lawyers from even informally discussing information related to their clients’ cases with others. They must keep private almost all information related to representation of the client, even if that information didn’t come from the client.

The Expectation of Confidentiality

Lawyer-client communications are covered by the attorney-client privilege only if the circumstances lend themselves to confidentiality. For example, clients who speak to their lawyers about pending lawsuits in private, with no one else present, can reasonably expect secrecy. If someone were to surreptitiously record the conversation, that recording would probably be inadmissible in court.

But a client who speaks to a lawyer in public wouldn’t be able to prevent someone who overheard the conversation from testifying about it. Similarly, a client can forfeit the attorney-client privilege by repeating a conversation with an attorney to someone else, or by having a third person present during a conversation with the lawyer. No matter who hears or learns about a communication, however, the lawyer remains obligated not to repeat it. (See Does eavesdropping destroy the attorney-client privilege? and If I tell someone something I told my lawyer, is it still confidential?)

Actual Clients Only?

Preliminary communications between a potential client and a lawyer are typically subject to the attorney-client privilege. That means that lawyers can’t disclose what prospective clients reveal in confidence even if the lawyers never ends up representing them. (In re Auclair, 961 F.2d 65 (5th Cir. 1992).) To be sure, though, you should confirm with a prospective lawyer that the privilege applies before you reveal anything you want to keep secret.

Past and Future Misbehavior

Discussions of previous acts are generally subject to the attorney-client privilege. If, for example, if a client tells his lawyer that he robbed a bank, killed someone, or lied about assets during a divorce, the lawyer probably can’t disclose the information.

But if a client initiates a communication with a lawyer for the purpose of committing a crime or an act of fraud in the future, the attorney-client privilege doesn’t apply. Likewise, most states allow—or require—attorneys to disclose information learned from a client that will prevent death or serious injury. Many have a similar rule where revealing otherwise confidential information would prevent or remedy financial injury due to a crime or fraud.

(For more detail, see The Crime-Fraud Exception to the Attorney-Client Privilege.)

Example: In a civil suit regarding allegedly stolen funds, the judge orders the defense to turn over to the plaintiff documentation of conversations between the defendant and his attorney. The defense argues that the attorney-client privilege applies, and that the documents are protected. But the documents relate to plans between the defendant and the attorney to misappropriate funds belonging to the plaintiff. Because the communications were for the purpose of committing fraud, they aren’t privileged. (Both v. Frantz, 278 Ga. App. 556 (2006).)

Example: A client calls his divorce lawyer and tells the lawyer that he plans to kill his wife’s boyfriend. After getting off the phone, the lawyer calls the police and reports the client’s statement. But before the police can find him, the client kills the boyfriend. Because the state ethics code permitted the lawyer to disclose the information in question, the lawyer was allowed to report the client’s statements. In addition, the lawyer’s report of the statements is admissible at the defendant’s trial. (Shorter v. State, 33 So. 3d 512 (Miss. Ct. App. 2009).)

Talk to a Lawyer

The attorney-client privilege differs somewhat from state to state, and between state and federal court. When speaking to an attorney about a legal matter, make sure to go over the scope of the attorney-client privilege and the duty of confidentiality. The lawyer should be able to advise you of the applicable law and address any pertinent areas not covered in this article.

Article originally posted here.

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