Can Attorneys be Mandated Reporters?

May 10, 2022
The Moorestown DCPP Lawyers at the Law Offices of Theodore J. Baker Help Those with DCPP Investigations .
The Moorestown DCPP Lawyers at the Law Offices of Theodore J. Baker Help Those with DCPP Investigations .

Every state, including the District of Columbia, have specific mandatory statutes for reporting suspected child and elderly abuse. Most believe that those reporting must only be health care officials, such as doctors, nurses, or therapists, or professions that include working with children or the elderly, respectively. However, that is not the case, as many states, including New Jersey, mandates that any person must report child and elderly abuse. But what does that mean for the attorney and client confidentiality?

As far back as 1963, federal law required only physicians to report child abuse, with the charge of a misdemeanor should they fail to do so. Since then, each state has begun to implement their own laws, many of which expanded on the duty to report abuse and who should carry that duty. Mandatory reporting statutes come in four different categories, regarding who must report abuse:

  • States with statutes a particular class of people that does not include attorneys, but healthcare professionals and child caregivers. States with this statute keeps the attorney/client privilege intact, does not require an attorney to report, nor do they have the duty to report. The majority of states in the country enforce this statute.
  • There are a few states, Mississippi and Nevada, that require a specific class of persons to report child abuse cases and do not include attorneys.
  • There are states that have statutes that require any person to report a suspected case of child abuse regardless of profession, which do include attorneys, and do not have an exception for the attorney/client privilege. These states are Idaho, Indiana, Nebraska, New Mexico, North Carolina, Oklahoma, Pennsylvania, Texas, and Utah.
  • Finally, there were statutes that specifically excluded attorneys from reporting a suspected child abuse to preserve attorney-client privilege, yet require any person to report. Some of the states that enforced this statute are Delaware, Florida, Kentucky, and New Jersey.

However, New Jersey’s ethics rules override confidentiality, meaning that a suspected child abuse must be reported as soon as the lawyer “reasonably believes necessary.” The urgency to report is to help prevent the suspected person from committing an illegal activity that will likely result “in substantial bodily harm.” So, this mandate involved any person, regardless of profession, and carries a punishment if not followed.

Furthermore, according to New Jersey Rules of Evidence, an attorney’s services cannot be used to conceal a crime or fraud, including civil fraud. This overrides the attorney-client confidentiality as well. This falls in line with the state’s mandate of any person having the legal responsibility to report child and elderly abuse.

What is Child Abuse?

Child abuse happens when a parent or guardian, or another caretaker, does any of the following to a person under the age of 18:

  • Abandoning a child.
  • Allows a situation to prolong that can risk or cause physical or emotional injury to a child.
  • Excessively restraining a child whereas the child’s behavior is not harmful to another.
  • Harm or injury that causes a loss of function to any bodily organ.
  • Non-accidental inflicted injury or allowing another individual to physically injure the child, causing a risk of death or impairment, disfigurements, or long-term impairment to the child’s physical or emotional state.
  • Not supplying a child with sufficient food, clothing, shelter, etc. Neglecting a child education and medical care when having the means to do so. Not properly supervising a child, who then can be impaired or physical, emotional and mental health are threatened. This also includes excessive corporal punishment.
  • Placing a child in a situation for a period of time knowing that it may cause harm to their physical or mental health.
  • Sexual abuse of a child or allowing a child to be sexually abused or allowing a situation to exist where a child is being sexually abused.
  • Willfully isolating a child from social contact that causes emotional or mental harm.

What is Elder Abuse?

Elder abuse is now a mandatory reported issue as well, which includes neglect and exploitation of any adult over the age of 18 who, because of physical or mental illnesses or disabilities lack sufficient understanding or capacity to make, communicate or carry out decisions concerning their well-being. This is to be reported to Adult Protective Services. This includes healthcare field professionals and first responders.

How to Report Suspected Child Abuse?

Reporting child abuse should be made to the Division of Child Protection and Permanency (DCPP). The hotline operates 24 hours a day, seven days a week, and reports are anonymous. Since New Jersey is a mandatory reporting state, the report should be done immediately and should contact information such as the abuser’s identity, the extent of the abuse, and the name and addresses of the child or parent/guardian. Finally, any person making the report or testifying in court because of the report is immune from civil or criminal liability.

After receiving the report, the DCPP is required to perform an investigation to determine if the suspicion is true. An assessment will also be made if the DCPP can provide child welfare services; if not, DCPP will refer to another capable party. The DCPP will perform a safety assessment and interview the child who is in question. They will also interview the parent or guardian and other members of the household. The suspected abuser is also interviewed, as well as any witnesses to the situation.

Failure to report sexual child abuse carries a fourth-degree penalty, which can be a penalty of up to 18 months in jail. Failure to report any other type of abuse, including physical or mental injury, is regarded as a disorderly person offense and can carry a penalty of up to six months in prison.

Attorneys may be hesitant to report any abuse because of their attorney-client privilege, fearing that reporting their client’s criminal past or future may violate confidentiality. However, New Jersey legislature has made the difficult decision easier by mandating that all persons, regardless of profession, must comply with the statute, and it does not violate their professional duties by presenting the report under the cover of anonymity.

The Moorestown DCPP Lawyers at the Law Offices of Theodore J. Baker Help Those with DCPP Investigations

Being reported to the DCPP is never an easy situation, but the Moorestown DCPP lawyers at the Law Offices of Theodore J. Baker can help. Our skilled team has years of experience and will fight to protect your rights. Call us today at 856-210-9776 or fill out our online form for a consultation. With our offices located in Cherry Hill, New Jersey, we proudly serve all communities of Haddonfield, Marlton, Medford, Moorestown, Mount Laurel, Voorhees, and South Jersey.

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