That’s your constitution in the middle, getting screwed over.
I wrote yesterday about the CT legislature failing to enact an exemption to the mandatory reporting statute for social workers employed by defense attorneys and the problems attendant to that.
In that post, I glibly noted that the legislature hasn’t yet made lawyers mandated reporters – and I was wrong.
In the public act that was just enacted, PA 14-186, the definitions of mandated reporters were “clarified” and some others were added to the list. This, surprisingly, now includes the following:
(14) any paid administrator, faculty, staff, athletic director, athletic coach or athletic trainer employed by a public or private institution of higher education who is eighteen years of age or older, excluding student employees.
The bold portion is the relevant portion. This would, generally speaking, include every professor or adjunct professor at a college, university or graduate school.
What is a graduate school? A law school. So faculty at a law school – also called law professors – are thereby included on this list. But that doesn’t seem to be the end of it. Any paid faculty encompasses the myriad adjunct professors who are full-time lawyers, but also dabble in teaching students on the side.
What makes it worse is that every law school in Connecticut has several clinical programs that deal exclusively with the representation of poor and disenfranchised people: the criminal trial clinic at UCONN, the appellate clinics at UCONN and Quinnipiac, the immigration and prisoner rights clinic at Yale, among many others1.
All of these clinics employ lawyers as professors who are responsible for representing these clients in real, actual courts and they supervise students for whom they are also responsible. They also employ full-time public defenders as adjunct faculty. Some also employ judges.
Law school clinics are a great teaching environment for lawyers of tomorrow, but they are also a tremendous cost-effective way to provide much needed legal services to poor citizens of this state and refugees from other countries.
But now, these law professors – the faculty members and the part-time paid adjunct faculty of these clinical programs who are most frequently public defenders – are also mandated reporters.
Worse, it doesn’t matter if the information they gleaned was during the course of their full-time employment as a public defender. By virtue of their being adjunct faculty members, they have to report their own clients, thus vitiating any attorney-client confidentiality and utterly destroying the Sixth Amendment guarantee of conflict-free representation.
This is utterly ridiculous. While there are many ethical opinions out there that state [PDF] conclusively that attorney-client privilege trumps [PDF] any mandatory reporting statute, the reality is that the legislatures are making failure to report suspected child abuse a very serious crime with incarceration as the penalty.
Of course, one might assume that the same protections apply to social workers or mitigation specialists who are part of the defense team – and there is some appellate authority to support that – but we aren’t going to know either for sure until a lawyer or social worker fails to report and gets arrested. While there are some who will put their liberty on the line and challenge the statute as being unconstitutional, that cannot be asked of anyone – no one should have to be the guinea pig.
Whether knowingly or otherwise, this legislature has taken steps to completely shred the 6th Amendment in Connecticut. This must be rectified immediately.