Eye on Ethics
When Ethical Standards Collide
Recently, I received a telephone call from a social worker employed in a county public defender’s office. The public defender’s office provides legal representation to indigent defendants charged with criminal offenses. Many of the clients struggle with mental illness and substance use disorders. The social work unit in the office works with attorneys to assess clients’ behavioral health challenges, identify needs, and develop proposals to criminal court judges to include treatment as part of the court’s disposition (often as a condition of probation and as an alternative to incarceration).
The social worker who called me for consultation explained that he had just met with a client who was being held at the local jail and with the public defender who was assigned to the client’s criminal court case. The social worker described a complex scenario that led to his request for an ethics consultation:
The attorney and I met with the client in a small room at the jail designated for attorney-inmate visits. The attorney explained to our client, who had been diagnosed with a traumatic brain injury and some cognitive impairment, the nature of the criminal charges against him, which included sexual assault of his 15-year-old stepsister. I asked the client questions about his mental health history and prior treatment. At one point in our discussion, the client stated he never sexually abused his stepsister, although he admitted that they had been involved in what he described as a consensual sexual relationship. At that moment, the attorney told the client that she needed to consult with me privately for a few moments. The attorney asked me to step outside of the room. The attorney then told me that I was to disregard the inmate’s comment about the alleged “consensual” relationship between him and his stepsister. The attorney acknowledged that under our state’s mandatory reporting statute, I was required to notify local protective services officials. But, the attorney said, as the inmate’s criminal defense lawyer, she is required under lawyers’ ethical standards to keep that information confidential, since disclosure would expose our client to legal risk.
I was stunned. Until that moment, it hadn’t dawned on me that as part of my job for this legal office I might be required to compromise my social work ethics duties.
Conflicting Ethical Duties
Wouldn’t it be nice if there were simple, one-size-fits-all protocols available to social workers that enable them to easily resolve conflicts between social work and other professions’ ethical standards? Alas, there are no instant remedies when these circumstances arise. In fact, in many instances, there are diverse opinions on how to best manage these conflicts, both within and across professions.
As an illustration, let’s return to the case involving the social worker employed in the county public defender’s office. On one hand, one might argue that social workers should always comply with the profession’s ethical standards, including, for example, compliance with local mandatory reporting laws. As the NASW Code of Ethics states, “Social workers’ primary responsibility is to promote the well-being of clients. In general, clients’ interests are primary. However, social workers’ responsibility to the larger society or specific legal obligations may on limited occasions supersede the loyalty owed clients, and clients should be so advised. (Examples include when a social worker is required by law to report that a client has abused a child or has threatened to harm self or others.)” (standard 1.01)
On the other hand, the American Bar Association’s Model Rules of Professional Conduct state, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent” (Rule 1.6[a]). Although there are some very narrow circumstances under which attorneys are permitted to disclose confidential information without clients’ consent, it is widely accepted that in nearly every instance lawyers have a fundamental duty to protect their clients’ confidentiality. In the legal profession, honoring the attorney-client privilege is sacrosanct.
Reasonable Minds Can Differ
Just such an approach is reflected in an insightful analysis entitled “Law and Social Work: Reconciling Conflicting Ethical Obligations Between Two Seemingly Opposing Disciplines to Create a Collaborative Law Practice,” authored by Premela Deck, JD, MSW, who is both a social worker and attorney: “The role of the social worker juxtaposed with the role of the attorney causes collaboration tensions. While both professionals ultimately seek to aid the client, the different professional orientations and ethical mandates applicable to their interactions with a client may cause interdisciplinary anxiety” (p. 265).
“Recognizing the value of collaboration between attorneys and social workers as well as the hurdles that face collaboration, namely professional roles and ethics, it may seem impossible to create a successful practice that utilizes both disciplines” (p. 274).
Deck goes on to describe three possible models to address this tension. First, under the consultant model, the attorney consults the social worker without disclosing the client’s identifying information. The attorney limits the discussion to a detailed description of the client’s circumstances and seeks the social worker’s advice about possible options. The client’s confidentiality is preserved, although the social worker’s role is circumscribed because of her limited involvement in the client’s case.
Under the second model, the social worker is a law firm employee who is expected to abide by lawyers’ ethical rules and duties. The law firm may make the decision to bar the social worker from working with the client entirely, establish protocols to allow the social worker to work with the client but prevent the social worker from learning reportable information, or inform the client from the onset of the client’s involvement with the firm that the social worker is a mandated reporter and to gain the client’s consent to work with the social worker.
Finally, under the consent model a social worker would be working with a client in a therapeutic role but not as part of a legal team. With this approach, the social worker would be bound by her statutory and ethical duties, while the attorney would remain obligated to zealously represent and not adversely affect her client.
Interprofessional collaboration is vitally important, especially when it advances clients’ interests. A potential challenge, however, is that the respective professionals’ ethical duties may conflict. If and when such conflicts arise, social workers have a moral duty to seek a reasonable solution that adheres to social work’s ethical standards. This may require perseverance, discipline, and principled creativity.
— Frederic G. Reamer, PhD, is a professor in the graduate program of the School of Social Work at Rhode Island College. He is the author of many books and articles, and his research has addressed mental health, health care, criminal justice, and professional ethics.