Necessary Third Parties: Multidisciplinary Collaboration and Inadequate Professional Privileges in Domestic Violence Practice
Jeffrey R. Baker
Pepperdine University School of Law; Faulkner University Jones School of Law
Columbia Journal of Gender & Law, Vol. 21, p. 283, 2011
The rise of multidisciplinary practices among public-interest lawyers and other professionals promotes more effective and thorough services for vulnerable clients. In various forms, these professionals are creating formal or ad hoc partnerships as they minster to whole clients, not just to a client’s peculiar, momentary problem. For a victim of domestic violence, these collaborations can yield better outcomes and fruitful service, but they may also be critical to her very survival. As the common client works to escape a violent, oppressive relationship, her diverse professional servants must address the acute conflation of legal, medical, psychological, emotional and financial crises that beset her.
Although multidisciplinary collaboration can ease the client’s access to timely, appropriate solutions, such practices challenge traditional roles and boundaries among professions. These collaborations can strain ethical standards and the foundations of a profession’s purpose and culture. This promising movement generates complex problems for attorneys and counselors bound by distinct, sometimes contradictory rules of confidentiality and privilege. As the creative, well intentioned attorney works to render service with mental health professionals, their exchanges and cooperation might threaten precepts of confidentiality, client identification, zealous advocacy and loyalty. Domestic violence victims should not be made to choose between candid communication with their lawyers and counselors and the potential exposure of their confidence in court.
Current applications of professional privileges do not accommodate multidisciplinary practices adequately, leaving 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 strict limitations of professional conduct now may justify a new framework for collaborative services to certain clients.
This article proposes two reforms to accommodate the virtues of multidisciplinary practice while promoting greater professionalism and ethical lawyering. First, under the rules and in federal common law, domestic violence counselors and victim advocates should be “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.
Number of Pages in PDF File: 74
Date posted: May 16, 2009 ; Last revised: October 19, 2011