Confidentiality & Privilege

Every office that incorporates social workers into the legal team must establish clear policies on confidentiality, privilege, and mandatory reporting. Because mandatory reporting laws vary by state, offices should consult local statutes to ensure compliance. Public defenders’ privileged relationship with clients is a cornerstone of representation. While we cannot promise specific outcomes, we can promise confidential counsel and zealous advocacy. As teams expand, defenders must think carefully about how to protect attorney–client privilege while integrating new team members.

Clients should be informed that all members of the interdisciplinary team—including social workers—are part of the legal team and are bound by attorney–client privilege. They should also understand that team members will share relevant case information internally to coordinate strategy and provide the strongest possible representation. Finally, all team members must be familiar with the jurisdiction’s ethical rules, with particular attention to confidentiality, privilege, and the responsibilities governing non-lawyers.

Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism,
and Mandated Reporting

National Association for Public Defense Ethics Opinion

National Legal Aid and Defender Association: The Interdisciplinary Defense Team and Confidentiality: What Defenders Need to Know

• There are many reasons that the people we represent could be hesitant to work with defense social workers. They may have had bad experiences with social workers from other types of agencies in the past, including schools, the foster system, hospitals, or treatment settings, and expect that defense social workers might act in similarly harmful ways.
• When introducing a social worker member of the legal team, the attorney should explain that the social worker is an advocate and member of their legal team, unlike other social workers in their lives. Lawyers should outline the role of the social worker on the case, and why it will be helpful to add this team member,and answer any questions that arise about the role of the social worker on their team. It should ultimately be the decision of the person we represent if they work with a social worker.

Even if a client declines to work directly with a defense social worker, the social worker could offer valuable insight and feedback to the attorney behind the scenes as the attorney navigates the case and the attorney/client relationship.

It is important to communicate the role of the defense social workers to the Court and other system players, in part to distinguish them from other social workers in the court system. They are not clinicians reporting to the court or a supervising entity. Because social workers often have deep knowledge of community resources and strong rapport with clients, they often lend expertise and credibility to the representations of attorneys in the courtroom.