Guide on the disclosure of confidential information: Attorney information

Information on the disclosure of confidential information for attorneys

Overview

Attorneys are appointed or retained to represent children and parents in cases in the Juvenile Court and Probate and Family Court. The types of cases include delinquency, youthful offender, Care and Protection, Child Requiring Assistance (CRA), adoption and guardianship of a minor cases as well as in contested private adoptions. The Committee for Public Counsel Services (CPCS) is responsible for paying and overseeing the work of attorneys who are appointed to represent indigent parents and children. These lawyers may be staff attorneys working in CPCS offices or they may be private lawyers, who are trained and certified to take cases. G.L c. 211D § 6.

Attorneys for parents and children have many obligations to their clients. Included among them are zealous advocacy, undivided loyalty and confidentiality. These obligations are set out in the Massachusetts Rules of Professional Conduct. CPCS also maintains performance standards for attorneys in different practice areas. Additionally lawyers are bound by the attorney-client privilege. Massachusetts Guide to Evidence §502. A lawyer cannot disclose “confidential communications” with their client, made during the course of representation, unless the client provides written or oral waiver of the privilege. There are limited exceptions to the attorney-client privilege (these are similar to those set out in the Mass. Rules of Professional Conduct). The attorney-client privilege mostly applies to court proceedings, where an attorney may be called as a witness or required to produce documents. An attorney’s obligations under the Mass. Rules of Professional Conduct are broader than the attorney-client privilege and apply to situations outside the courtroom.

Lawyers for children must abide by the same rules of professional conduct as lawyers for adults, including representing their client’s express wishes. They do not represent the child's best interests. Attorneys for both parents and children play a vital role in explaining the legal process to their clients and providing legal counseling and advice, including the potential consequences of their decisions. Attorneys for children, youth, and parents also play an important role in protecting against the “free flow of information” about their clients, including protecting their client’s confidential relationships with mental health and other treatment providers.

NOTE:  This guide should not be used as a substitute for a lawyer’s knowledge of the Rules of Professional Conduct.

When can an attorney for a child, young adult or parent share information with others?

Under the Rules of Professional Conduct, all information that an attorney learns during the course of representing a client is confidential. This includes information that the attorney learns from the client as well as information from third parties. With some very limited exceptions, attorneys cannot disclose any information unless the client gives informed consent. Mass. R. Prof. C. 1.6(a).

Some of the most common exceptions are discussed below. 

1. An attorney may disclose confidential information that is "impliedly authorized" by the client to carry out the representation. This simply means that the attorney in the course of his advocacy can disclose information that the client would agree is necessary to further the client’s goals in the case. For example, if a child in foster care tells his attorney that he wants to visit more with his mother, the lawyer can tell DCF that his client wants more frequent visitation, even though the lawyer's conversation with the client about visits is confidential. Another example is when the attorney is preparing for a bail argument and the information learned from the client will be helpful in persuading the court the client will return to court. If the lawyer has any doubt whether the client would want the information disclosed, he should ask the client for permission. Mass. R. Prof. C. 1.6(a).
2. An attorney may, but is not required, to disclose confidential client information if it is necessary to prevent reasonably certain death or substantial bodily harm. Mass. R. Prof. C. 1.6(b)(1).
3. In certain limited circumstances, if the attorney determines that the client's ability to make decisions about the legal case is diminished, either because of age or disability, the attorney may reveal confidential information to the extent necessary to protect the client from substantial harm. Mass. R. Prof. C. 1.14.