When the State Demands Disclosure

Abstract

The obligation to provide certain types of information to government authorities—reporting child abuse, say, or insurance fraud—is proliferating. Are these laws enforceable against lawyers who obtain the sought-after information in the course of representing a client? This Article sets out to answer exactly that question. It begins by explaining why it is wrong to approach the question by balancing the policies that underlie attorney-client confidentiality against those underlying reporting statutes. Such an approach fails to grasp the essential nature of the question, which is one of legislative power and legislative intent. This Article is the first to offer an authoritative account of constitutional constraints on the power of legislatures to impose disclosure obligations on lawyers. Demonstrating that these are surprisingly few, the Article then asserts that in most cases the task remaining for courts will be one of statutory interpretation: Did the legislature intend for the disclosure statute to apply to lawyers and supersede the confidentiality obligation? And what should courts do when the answer is unclear?