Necessary third parties: multidisciplinary collaboration and inadequate professional privileges in domestic violence practice.

• Author: Baker, Jeffrey R.

1. Introduction

   The rise of multidisciplinary practices among public-interest lawyers and other professionals promotes more effective and thorough services for vulnerable clients. Attorneys, counselors, social workers and others are recognizing that clients may present issues that transcend the scope and purpose of a single profession. In various forms, these professionals create formal or ad hoc partnerships as they minster to whole clients, not just to a client's peculiar, momentary problem. (2) For victims of domestic violence, these collaborations can yield more successful outcomes and fruitful service, can be necessary for competent representation, and may even be critical to her very survival. As the client works to escape a violent and oppressive relationship, her diverse professional servants must address the acute conflation of legal, medical, psychological, emotional and financial crises that beset her.

   Multidisciplinary practices embrace the wider context in which clients exist and ease the client's access to timely, appropriate solutions. Such practices, however, can also challenge traditional roles and boundaries among professions. These collaborations can strain ethical standards and the very foundations of a profession's purpose and culture. In particular, this promising movement generates complex problems for attorneys and counselors who are bound by distinct, sometimes contradictory, rules of confidentiality and privilege. As the creative, well-intentioned attorney works alongside mental health professionals or social workers, their exchanges and cooperation threaten precepts of confidentiality, client identification, zealous advocacy and loyalty.

   Current applications of professional privilege do not accommodate multidisciplinary practices adequately--they fail to afford sufficient protection for victims of domestic violence and leave clients vulnerable to continued exploitation and coercion by their abusers. The professions' ethical rules exist to protect clients and society, so the value of collaboration should prompt renewed understanding of inter-professional relationships and the rules that govern them. The very policies that justify stark limitations of professional conduct now may justify a new framework for providing services to certain clients.

   This Article explores the blurring boundaries of confidentiality and professional privilege in multidisciplinary practices, specifically those serving victims of domestic violence. In domestic violence practice, the problem arises when a victim of domestic violence, running for her life, finds shelter with counselors and victim advocates who engage lawyers to represent her. Although the attorney often needs information gathered by counselors, counselors may wish to share intimate information with the attorney that the client is likely too traumatized to repeat herself. The client may require the counselor in order to function in an interview with the lawyer, yet both professions' ethics of confidentiality and privilege will forbid such an exchange unless the client is willing to sacrifice her privileges with both.

   In such a case, a strict reading of the confidentiality rules defeats their intent to serve and protect the client's interests. Rather than favoring clients and society, current confidentiality rules may deplete services to the client, aggravate her trauma, disrupt her access to the judicial system and compromise her legal outcome. Domestic violence victims should not be made to choose between candid communication with their lawyers and counselors and potential exposure of their confidence in court. To promote better client service and access to justice, as well as to promote the policies underlying ethics rules themselves, interpretation of privilege rules should move toward a clearer understanding of domestic violence victims, their needs and the roles of the professionals who serve them.

   This Article first describes the experience of domestic violence victims as they encounter professionals from various disciplines and the potential for interaction and compromise among them. The next section examines the rise, promise and risks of multidisciplinary practice, followed by a critical comparison of the various ethical rules of confidentiality and privilege among the various professions at issue.

   This Article concludes by proposing two reforms to accommodate the virtues of multidisciplinary practice. First, current evidentiary rules should permit the presence of "necessary third parties" in interactions between attorneys and clients, whose presence does not destroy attorney-client privilege. In critical situations, domestic violence counselors and victim advocates should be recognized as "necessary third parties" to the attorney's privilege so that their presence and contributions do not expose the client's confidential communication. Second, rules of evidence should permit the privileged professionals to collaborate and communicate on behalf of the common client without destroying their privileges, even if their privileges are not co-extensive. Simply, a client's counselor-client privilege and her attorney-client privilege should not be compromised if the counselor and attorney work together to address the client's needs.

2. A Day in the Life of Multidisciplinary Domestic Violence Practice

   In a law school's family law clinic, students represent domestic violence victims seeking to obtain civil protection orders and counsel clients through divorce and child-custody matters. Students also orient and advise clients when they are called to testify in criminal cases against their abusers. (3) The students meet their clients and conduct intake interviews at an inner-city shelter and counseling center. Most of the clinic's clients are referrals from the shelter. The law school and the shelter are separate entities, but the shelter provides office space for the clinic.

   One day in the middle of the semester, during the clinic's intake shift, a shelter counselor came into the students' conference room to discuss whether the clinic could assist a client in need of a civil protection order. The counselor told the students that the client, Katrina, had entered the shelter the previous night after being raped and beaten by her husband, the father of her eighteen-month old baby. This latest incident followed a protracted history of physical and coercive abuse over the course of their relationship, but this was the first time her husband raped her. This new violation, as well as his detailed threats to kill her and the child, drove her to flee to the shelter. Katrina's husband told her that if she ever left him, he would kill her and turn his violence on her family. The counselor suggested that Katrina seek a civil protection order and told her that the legal clinic could help her. The counselor said that the Katrina had agreed to see the students, despite having some legal troubles in her own past.

   The students told the counselor they were available and ready to meet the client. The counselor left to get Katrina and soon returned, leading her by the hand. The students noticed bruises and cuts on Katrina's face, and her hair was wet from a shower. The counselor closed the door behind them as the students and professor stood to greet the client. Katrina did not approach the conference table or offer to shake hands. Instead, she leaned against the wall in the comer, behind the counselor. She crossed her arms and looked down at the floor.

   According to clinic procedure, the students must introduce themselves and orient the potential new client to the clinic. Then, before they may proceed, the client must sign a consent form in which she acknowledges that supervised law students would represent her, agrees that the clinic may represent her and acknowledges that she understands that her case is a teaching case. One of the students addressed the Katrina directly to initiate this introduction, but the she stood against the wall and did not respond. The professor interjected softly and invited Katrina to sit at the table, and the counselor guided her by the arm to sit down. She kept her head down and folded her hands tightly in her lap. The professor repeated the orientation and asked the client if she understood and whether she would sign the consent form. Katrina looked up at the counselor who nodded her head; then Katrina picked up the pen and signed the form that the student set out for her. The professor said:

   "Katrina, I'm sorry to jump right into lawyer business, but I need to explain something important to you. We just created an attorney-client relationship, so we have to keep everything you tell us in confidence. We have to keep everything we discuss secret. This is called the attorney-client privilege; have you heard of that?"

   Katrina nodded, and the professor continued:

   "I have to tell you, though, that the privilege is only good if we have our conversations privately. If anyone else is in the room with us, then you might lose that privilege, and we might have to testify about we what we discuss. Do you understand?"

   Katrina looked up with a question on her face but did not answer. She looked apprehensively at the counselor, who explained:

   "Katrina, that means if I stay here while you talk to the attorneys, then we can't be sure that everything will be confidential. We might have to tell what we talk about in here."

   "Don't leave me!"

   Katrina pleaded and grabbed her counselor by the hand as tears started falling down her cheeks.

   "Katrina," the professor continued, "she doesn't have to leave, but if she stays, you just need to know that the conversation may not be confidential. We would fight it as much as we could not to disclose what we discuss, but a judge might make us talk about what we all say here. Do you want your counselor to stay?"

   "Yes."

   "Do you still want to talk with us about your situation and a civil protection order?"

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