Conflicts in Child Protection Proceedings [Michigan]: Part 2 ~ Confidentiality

 


 

by Christian, civil trial attorney, RL Johnson


To defend the cause of the weak and fatherless and maintain the rights of the poor and oppressed is the highest calling of the Christian lawyer. Toward this end. I am publishing this series of pieces for lawyers who dedicate a portion of their practice to the service of children.

 

“Whoever welcomes one of these little children in my name welcomes me; and whoever welcomes me does not welcome me but the one who sent me.”


~ Mark 9:37 NIV

 

Is the L-GAL bound to protect information gained in the professional relationship with the child-client that the child has requested be held in confidence? E.g., an L-GAL is requested to disclose client confidences or the work product underlying information that an L-GAL’s may report to the court pursuant to §17d(j).


MRPC 1.6 states, in relevant part, that:


"(a) 'Confidence' refers to information protected by the client-lawyer privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.


(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:


(1) reveal a confidence or secret of a client;

(2) use a confidence or secret of a client to the disadvantage of the client; or

(3) use a confidence or secret of a client for the advantage of the lawyer or of a third

person, unless the client consents after full disclosure.


(c) A lawyer may reveal:


(1) confidences or secrets with the consent of the client or clients affected, but only

after full disclosure to them;

(2) confidences or secrets when permitted or required by these rules, or when

required by law or by court order[.]”

* * * *


An L-GAL may reveal certain “confidences or secrets” to the court. MRPC 1.6(c)(2) tells us that an L-GAL may reveal a confidence or secret communicated by a child to an L-GAL when “when required by law[.]” id.[i] Section 17d requires an L-GAL to reveal communications with the child in two specific (2) instances. First, in accordance with MRPC 1.6, an L-GAL is required to communicate a child’s “wishes and preferences” to the court. §17d(1)(i). Additionally, an L-GAL is required to communicate a child’s “position” [§17d(2)] or “stated interests” [MCR 3.915(B)(2)(b)] to the court whenever a conflict arises between the L-GAL and the child regarding the child’s best interests.[ii]


While the foregoing construction of §17d may be clear on interpretive grounds, uncertainty may arises between, say, the L-GAL’s ethical duties as set forth in MRPC 1.6(c) and what some practitioners have described as pressure to disclose client confidences or the work product underlying findings that an L-GAL’s is required to report to the court pursuant to §17d(j), which mandates that an L-GAL “inform the court if the services are not being provided in a timely manner, if the family fails to take advantage of the services, or if the services are not accomplishing their intended purpose.” id.


However, absent an exception contained in MRPC 1.6(c) and apart from “inform[ing] the court as to the child's wishes and preferences” as set forth in §17d(1)(i) or “position” or “stated interests” as required by §17d(2) and MCR 3.915(B)(2)(b), respectively, communications between a child and an L-GAL are protected by the attorney-client privilege. §17d(1)(a) and (i); MCL §722.631; and, MCR 3.901(A)(3). [iii] Moreover, an L-GAL’s file of the case is not discoverable and neither the court nor a party can compel an L-GAL to testify regarding matters related to the case. §17d(3).



 

ENDNOTES

[i] Incidentally, cf. a traditional guardianship in which no lawyer-client relationship exists between a ward and a guardian ad litem appointed under MCL §700.7305(1) and/or MCR 5.121 where, and the lawyer is required to disclose all information requested by the court. id. See also MCL §§700.1403(d), 700.5305, and 700.5406(4) (discussing and defining the duties of guardian ad litem appointed for allegedly incapacitated individual); and, RI-318. [ii] Note that unlike §17d(1)(i) where an L-GAL should seek the child’s consent as set forth at MRPC 1.6(c)(1), neither §17d(2) nor MCR 3.915(B)(2)(b) limit an L-GAL’s duty to “inform the court as to the child's wishes and preferences.” §17d(2). That is to say, an L-GAL’s duty to report under §17d(2) is unrestricted and exempt under MRPC 1.6(c)(2). [iii] See also Ethics Opinion RI-318 opining that a lawyer appointed as lawyer-guardian ad litem for a minor in a child protective proceeding may prepare a written report to the court as long as the lawyer does not reveal the child/client's confidences and secrets. Additionally, “what constitutes privileged information is a question of law[.]” id. As such, “[a] lawyer who is asked to produce information that is covered by the attorney-client privilege or that contains confidences and secrets within MRPC 1.6, and with regard to which the client does not consent to disclosure, must await a subpoena, exercise the attorney-client privilege, and await the presiding judge's instruction of whether to release the information. RI-261, RI-54, RI-111, RI-106; JI-32.” id.

 

Helpful Links:

• Christian Legal Society

https://www.christianlegalsociety.org

• The Library of Congress’ website:

https://www.loc.gov/law/help/guide/states.php

• Civil Pro Se Forms

https://www.uscourts.gov/forms/civil-pro-se-forms

• Federal Rules of Civil Procedure

https://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure

• Public Access to Court Electronic Records (“PACER”) system

http://pacer.psc.uscourts.gov/


 

Disclaimer: The information contained in this article is offered for educational purposes only and is not intended to substitute for legal advice and is not customized to your particular needs. Before undertaking self-representation, we urge you to consult with an attorney licensed to practice in your state.



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