La. Admin. Code tit. 22 § XV-1317

Current through Register Vol. 50, No. 11, November 20, 2024

Section XV-1317 - Client Confidentiality

A. Juvenile defense counsel is bound by attorney-client confidentiality and privilege. The duty of confidentiality that the attorney owes the child client is coextensive with the duty of confidentiality that attorneys owe their adult clients.

B. The attorney should seek from the outset to establish a relationship of trust and confidence with the child client. The attorney should explain that full disclosure to counsel of all facts known to the child client is necessary for effective representation and, at the same time, explain that the attorney's obligation of confidentiality makes privileged the client's disclosures relating to the case.

C. There is no exception to attorney-client confidentiality in juvenile cases for parents or guardians. Juvenile defense counsel has an affirmative obligation to safeguard a child client's information or secrets from parents or guardians. Absent the child client's informed consent, the attorney's interviews with the client shall take place outside the presence of the parents or guardians. Parents or guardians do not have any right to inspect juvenile defense counsel's file, notes, discovery, or any other case-related documents without the client's express consent. While it may often be a helpful or even necessary strategy to enlist the parents or guardians as allies in the case, juvenile defense counsel's primary obligation is to keep the child client's secrets. Information relating to the representation of the child client includes all information relating to the representation, whatever its source. Even if revealing the information might allow the client to receive sorely-needed services, defense counsel is bound to protect the child client's confidences, unless the client gives the attorney explicit permission to reveal the information to get the particular services or disclosure is impliedly authorized to carry out the client's case objectives.

D. In accordance with Louisiana Rule of Professional Conduct 1.6(b), a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

1. to prevent reasonably certain death or substantial bodily harm;

2. to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

3. to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

4. to secure legal advice about the lawyer's compliance with the rules of professional conduct;

5. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

6. to comply with other law or a court order.

E. Attorneys who use the services of a mental health or social service practitioner should be familiar with the practitioner's legal duties to report instances of child abuse, and the extent to which the attorney's duty of confidentiality or the attorney-client privilege extends to the mental health or social service practitioner. The attorney should also be familiar with the practitioner's obligations to report abuse under the codes of professional ethics that govern the practitioner's professional licensing. The attorney should use professional judgment in engaging the assistance of a mental health or social service practitioner, and when so engaged should take appropriate action to minimize the practitioner's obligation to report information that would otherwise be protected by the attorney client privilege or the attorney's duty of confidentiality.

F. In the event that the attorney or a member of the defense team discloses information relating to the representation of the client without the client's express or implied authorization pursuant to a professional obligation, mandatory reporting statute, or other reason, the attorney should document the disclosure and the reasons therefor, should inform the client of the disclosure in an age- and developmentally-appropriate manner, and should consider whether the disclosure will render the attorney's continued representation of the client ineffective or whether the disclosure creates an actual or potential conflict of interests in continuing the representation, and take appropriate action pursuant to §1313 of this Part.

G. To observe the attorney's ethical duty to safeguard the child client's confidentiality, attorney-client interviews shall take place in a private environment. This limitation requires that, at the courthouse, juvenile defense counsel should arrange for access to private interview rooms, instead of discussing case specifics with the child client in the hallways; in detention facilities, juvenile defense counsel should have means to talk with the child client out of the earshot of other inmates and guards; and in the courtroom, juvenile defense counsel should ask for a private space in which to consult with the child client and speak with the child client out of range of any microphones or recording devices.

H. An attorney shall exercise discretion in revealing or discussing the contents of psychiatric, psychological, medical and social reports, tests or evaluations bearing on the child client's history or condition. In general, the lawyer should not disclose data or conclusions contained in such reports to the extent that, in the lawyer's judgment based on knowledge of the child client and the child client's family, the revelation would be likely to affect adversely the client's well-being or relationships within the family and disclosure is not necessary to protect the client's interests in the proceeding.

I. An attorney should ensure that communications with a client in an institution, including a detention center, are confidential. One way to ensure confidentiality is to stamp all mail as legal and confidential.

La. Admin. Code tit. 22, § XV-1317

Promulgated by the Office of the Governor, Public Defender Board, LR 37:2601 (September 2011), Amended LR 45406 (3/1/2019).

AUTHORITY NOTE: Promulgated in accordance with R.S. 15:148