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Abstract

Kevin Adams, a practicing attorney in Maine, represents John Brown in a dispute with Brown's landlord. Brown is facing eviction as a result of his inability to pay the rent. Over the course of the representation, Adams has come to believe that Brown is abusing his son. Brown--who is working two jobs but still cannot pay his rent--has told Adams of the incredible pressure he is facing. Brown has admitted that the pressure is getting to him and that he feels bad that he has been “taking it out on the kid.” Brown also told Adams that he had been attending anger management meetings, but that he no longer had time to participate. Adams has met Brown's son on two occasions. At the first meeting, Brown's son had a black eye and at the second meeting, Adams could see that Brown's son had bruises all over his arm. The last time Adams met with Brown, Brown mentioned that he had spent the previous evening in the emergency room of the hospital because his son had broken his arm. What should Adams do in this situation? And, is that different from what Adams can do? Could a failure to report suspected abuse expose Adams to future civil liability for the child's injuries under the theory of “failure to warn?” On the other hand, is Adams's ability to report this suspected abuse constrained by professional ethical rules that protect information gained in the course of representation? Could disclosure of such information actually subject Adams to disciplinary action from the Board of Bar Overseers? To answer these questions, an attorney must consider and evaluate his or her obligations under tort law, ethical rules, and legislative enactments. This Article will consider these competing “liabilities” and will argue that an attorney in Maine has the discretion to report child abuse without violating her ethical or legal obligations. Although this Article calls for a policy of “permissive reporting,” it concludes that any attempt to mandate reporting would be a misguided attempt to protect children. A discussion of an attorney's legal and ethical relationship to the reporting of child abuse is impossible without first considering the nature of the crime of child

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