Can a child’s attorney be forced to disclose privileged information?

That’s the question pending in the Third DCA. According to buzz around the courthouse (which I’ve had to sit in for a while these past 48 hours), a certain youth in a certain courtroom had gone “on run”, a term I despise for what it implies and what it omits. The only person who the youth trusted was the youth’s attorney, and the youth disclosed his location to the attorney and forbade the attorney from telling anyone (note: I don’t know the youth’s actual gender). According to the attorney, the youth did not appear to be in any danger. The Department, however, still (understandably, from their position) wanted to know the youth’s location so that they could attempt to bring him back into care. The attorney refused to disclose the information, based on attorney-client privilege.

That set up the show-down. Motions flew, responses issued, and argument was heard. In the end, the trial judge issued a reportedly very long and “very smart” order denying DCF’s motion to compel disclosure. The gist of the ruling: (1) client identification and address is normally not privileged, unless it is specifically requested to be kept secret, which it was here; (2) none of the standard exceptions to privilege apply; and (3) there is no “dependent child” or “best interests” exception to privilege; therefore DCF’s motion was denied.

DCF and GALP have appealed. It is now being briefed in the Third DCA.

This is obviously a hugely defining moment for attorneys for children in Florida. Because of the trust that the youth had in his attorney, at least one responsible person was still in touch with him and knew where he was. At least one person could get him on the phone and counsel him to come back in or talk him through how to deal with whatever he’s facing wherever he is. That inviolable trust, which has been considered the bedrock of a functional legal system for centuries, is in jeopardy.  This is a potential derogation of rights that should concern any attorney. If the government can force an attorney to disclose information based on its determination of  “your client’s best interests”, then there is no privilege at all.


One response to “Can a child’s attorney be forced to disclose privileged information?”

  1. […] As I said before, this is a critical moment for the rights of dependent children in Florida. Equally so, though, this is a critical moment for all attorneys: if the state and courts can force an attorney to disclose information based on their own interpretations of what is in that client’s best interest, then there is no privilege at all. This encroachment at the edges should raise alarm bells across the Bar. […]

Leave a Reply

Your email address will not be published. Required fields are marked *