Page 39 - January 2019 | Cleveland Metropolitan Bar Journal

COLuMN

JULY/AUGUST 2015

EldEr ABUSE

Mandatory Reporting by Ohio Attorneys

Jean M . McQuillan BarJournal ETHICS PErSPECTIvE

ecent reports about the expansion psychological harm, neglect includes self- First, an attorney may always disclose
of Ohio’s statutes relating to neglect and exploitation is improper use confidential information with the
elder abuse reporting were of resources through deception, threat or consent of a client or if the disclosure is
followed by the Ohio Supreme intimidation. ORC 5101.60,63 impliedly authorized in order to carry
R Court providing every Ohio Detailed definitions of abuse, neglect and out a representation. RPC 1.6(A) If an
attorney with Elder Abuse Mandatory Training exploitation and their signs and symptoms attorney has reasonable cause to believe
Materials: Understanding Elder Abuse: A Guide are beyond the limits of this column and are elder abuse is occurring and obtains
for Legal and Law Enforcement Professionals. extensively covered in the Guide, cited above, consent from their client to make a
What is going on? which can be downloaded at www.odjfs. report or the attorney represents the
The 2017 amendments to Ohio statutes state.oh.us/forms/num/JFS08096/pdf/. client in a situation in which reporting
on elder abuse greatly expanded mandatory A mandated report provides the identity abuse is relevant to the representation,
reporters. Those amendments also mandated of the adult and suspected abuser as well there is no issue.
the distribution of detailed information as the basis for and nature and extent of
about recognizing and reporting elder abuse the abuse, neglect or exploitation that led
— the reason for the attorney materials from to the report. Mandatory reporters are
the Supreme Court. not responsible to determine whether or Niki Z. Schwartz
Ohio attorneys have been mandatory not elder abuse is occurring. A report will
reporters of elder abuse for more than 20 trigger an investigation and determination Mediator/Arbitrator
years — without exception for attorney- by DJFS or APS.
client privilege or confidentiality. ORC There are protections for mandatory
5101.63 Despite this longstanding reporters. Although a report includes
obligation, it is difficult to find any the reporter’s identity that report is
specific guidance about an attorney’s confidential, not a public record, and the
ethical considerations when confronting name and other identifying information
this obligation under the Ohio Rules of about a reporter are not released. ORC
Professional Conduct. Given that any Ohio 5101.63(F) Any person who makes a
attorney who represents or has contact with report or testifies about elder abuse is
a person over 60 years of age — all of us immune from civil and criminal liability
— may also encounter situations that lead except for perjury, bad faith or malicious
them to consider or suspect elder abuse, it is purpose. ORC 5101.63(D)
timely to review this ethical landscape. “If he can settle
Addressing confidentiality issues
Statutory obligation to report This mandatory reporting for a client a prison riot,
In general, the statutory obligation can conflict with an attorney’s duty of he can settle
requires an attorney who has reasonable confidentiality. What guidance exists in
cause to believe that an adult, a person the Ohio Rules of Professional Conduct anything!”
over 60, is being abused, neglected or (which were adopted after this reporting
exploited shall immediately report such requirement) for an attorney who has
belief to the county department of job reasonable cause to believe that a client
and family services or its designated is suffering from elder abuse? The Ohio 216-696-7100
adult protective services agency. The Rules give an attorney discretion to disclose nzs.adr@gmail.com
obligation covers any adult, not only confidential information of a client in four
a client. Abuse includes physical or relevant situations.
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