Rule proposal would allow lawyers to disclose confidential information to protect minors
The Supreme Court has asked the Board of Governors to consider an amendment that would create a new exception to the confidentiality rule.
“Essentially what the amendment does is that it allows a lawyer to disclose confidential information to protect a minor client from potential risk of danger or harm,” Rules Committee Chair Stephanie Marchman told colleagues at a Board of Governors meeting earlier this month.
In a November 12 letter, justices set a May 1 deadline to file a rules petition or report with proposed revisions to Bar Rule 4-1.6 (Confidentiality of Information), that would “allow a lawyer to reveal confidential information about a client when the client is a minor child who may be in danger or at risk of harm.”
The letter refers to R.L.R. v. State, 116 So. 3d 570, 574 (Fla. 3rd DCA 2013) in which an attorney ad litem refused a judge’s order to reveal the whereabouts of a client who absconded from foster care.
The Department of Children and Families argued that the child, identified only as “R.L.R.,” could be living on the streets and at risk of harm.
The attorney ad litem team argued that R.L.R. disclosed his or her location in confidence, in connection with their ongoing representation in his dependency proceedings, and that the disclosures, “were clearly encompassed by the attorney-client privilege,” the appellate court wrote.
The trial judge ordered disclosure before putting the ruling on hold to permit an appeal. The trial judge found that existing exceptions to Rule 4-1.6 don’t apply in the case because they “were not necessary to prevent a crime or death or bodily harm to another.”
Referring to concerns that the child was at risk living on the streets, the trial judge compelled disclosure “in the interest of the proper administration of justice.”
The Third DCA disagreed and quashed the order. Finding that a dependency exception exists when the child is a danger to him or herself, “would require this court to carve out an altogether new exception,” the order states.
“That, however, is the rule-making function of the legislature or, possibly, the Florida Bar — not of this Court,” the ruling states.
The proposed amendment to Rule 4-1.6 would add a new subdivision (8) within subdivision (c), “permitting a lawyer to disclose confidential information to protect a minor client from a substantial risk of danger or harm.”
The Rules Committee presented the proposal on first reading at a January 17 board meeting in Tallahassee. The board could grant final approval as early as March 28, when it meets next in Tampa.
The Supreme Court will make the final determination.
