At a 2024 hearing of the New York State Assembly Committee on Children and Families, various professionals and systems-impacted people testified about how current child abuse reporting practices hurt children and families, instead of helping. One particular testimony, offered by Sarah Hedden, Esq., MSW, Managing Attorney for the Center for Elder Law and Justice in Buffalo highlighted an often ignored question: are social workers who work in legal settings still mandated reporters of suspected child abuse and neglect?
Social workers in all fifty states are mandated reporters of suspected child abuse and neglect. Social workers also have a general obligation to keep client information confidential. The NASW Code of Ethics expects social workers to breach client confidentiality in certain circumstances, like when necessary to "prevent serious, foreseeable, and imminent harm to a client or others” or required by law (e.g. mandated reporting).
When social workers work in legal settings, the role of mandated reporter conflicts with the legal and ethical obligation of lawyers in that practice to keep client information confidential at a higher level of protection than is expected of social workers. This difference in legal and ethical expectation creates a conflict between the two professions. Since most social workers never work in legal settings, they rarely consider this conflict. However, the practice of social workers working in legal settings is becoming more common.
Interdisciplinary opportunities for lawyers and social workers have expanded significantly, especially in New York state, over the past few decades. Most of these new opportunities come from legal services organizations that have hired social workers in order to provide “wrap-around” or “supportive” services to their clients. This kind of interdisciplinary practice is most common in criminal and family defense work.
In these practice situations, the lawyer provides the primary professional service. The client has certain expectations when hiring a lawyer. When a client seeks to retain an attorney for representation in a legal manner, attorney-client privilege and confidentiality are standard. As a result, the client should feel very comfortable sharing information with their attorney, knowing that the attorney will not share that information with others. For instance, lawyers cannot fulfill their client’s constitutional right to an attorney in defense proceedings if the client is not secure in the fact that the information they share with their legal team will not be provided to the government who is prosecuting them.
Under the American Bar Association’s Model Rules for Professional Conduct, Model Rule 5.3, anyone working under the direction of a lawyer must assure that their conduct aligns with the lawyer's professional obligations. For instance, communications between administrative aides or paralegals employed by the lawyer or law firm and a client are confidential and protected by privilege. The same could be expected on social workers working under the direction of the lawyer, but social workers are also expected to adhere to their own code, the NASW Code of Ethics.
So, we’re left with an interdisciplinary conflict. In an effort to settle this conflict, various entities have evaluated whether social workers remain mandated reporters when working in legal settings.
In 1990, the Maryland Attorney General explored this issue and determined that when social workers are working in support of the lawyer’s role with a criminal defendant already under prosecution, the social worker is no longer bound by their role as a Mandated Reporter (75 Maryland Attorney General Opinion 76 [1990] 1990 WL 595302).
The National Association for Public Defense (NAPD) conducted a legal analysis that concluded that social workers supporting attorneys in the role of public defender are not mandated reporters.
The DC Bar Association asserts that there is no clear answer on this question, and thus clients have the right to know that the social worker in interdisciplinary practice might be obligated to make a report.
The Kansas Attorney General followed the DC Bar Association reasoning and issued a largely identical opinion in 2001.
The 2005 Nevada Bar Association determined that social workers in these roles are bound by the attorney’s duty to protect client confidentiality, and thus not mandated to report suspected child abuse.
The National Association of Social Workers (NASW) referenced all of these evaluations and opinions when they made recommendations to social workers in 2008.The NASW did not make a clear determination on the question, but instead provided social workers the ability to make a decision they deem appropriate to their role and the state they practice in. The NASW recommends social workers anticipate the potential conflict when entering into interprofessional practice with attorneys, and address the issue prior to a problematic situation arising.
Since the law does not provide a definitive answer as to whether social workers who work in legal settings are still mandated reporters of suspected child abuse and neglect, social workers should apply their own ethical values, as clarified by the NASW. In interdisciplinary practice settings, there are many social workers who firmly believe that their obligation as a mandated reporter is eliminated when the primary role they play is in supporting the client’s legal representation. In many of these settings, social workers commit to that perspective before employment. Other social workers firmly believe there is nothing that can eliminate their mandate to report.
No matter the decision made by the individual social worker in interdisciplinary practice, the choice should be clear to both the client and the attorney engaged in the professional relationship. With clarity on the role of the social worker, the client and attorney can make choices as to how to interact with the social worker in that setting.
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