Can a Maryland social services caseworker report a client's crime to the police, or does confidentiality law forbid it?

Plain-English summary

Maryland's Secretary of Human Resources asked the Attorney General to sort out a recurring tension for local departments of social services: caseworkers routinely learn about clients' criminal activity, from drug use to abuse to more serious crimes, but state and federal confidentiality laws protect welfare and social-service records. The Secretary asked whether employees have any duty, or at least discretion, to report that activity to police, whether it matters if the information came from an official case file versus something the employee learned personally, whether child abuse is treated differently, and whether an employee's specific job affects the analysis.

The Attorney General found no general legal duty to report a crime in Maryland, except where a specific statute creates one (most notably, mandatory child-abuse reporting for "human service workers" and similar professionals), or where an Executive Branch employee is bound by an executive order requiring drug offenses at state workplaces to be reported. On discretion, the opinion drew its central line from where the information came from. Anything a social services employee learns off-duty, in a personal capacity, is entirely outside the confidentiality statutes and can be reported at will. For information learned in an official capacity, the opinion split it in two: an employee may report a crime the employee actually witnesses, or a client's serious, genuine stated intention to commit a future crime, because forcing silence in those situations would produce absurd results the Legislature could not have intended. But an employee generally may not report a client's past criminal conduct learned through official casework, because disclosing it would undercut the trust-building purpose the confidentiality laws exist to protect, drawing an analogy to the well-established rule that attorney-client privilege protects disclosures about past crimes but not a client's stated plan to commit a future one.

Common questions

Does a Maryland social worker have to report a crime a client tells them about?
Generally no, according to this opinion, unless a specific statute requires it (as with suspected child abuse or neglect). Absent such a statute, there is no general legal duty in Maryland to report a crime, though the opinion described doing so as ordinarily "a civic duty."

Can a caseworker report a client's crime if they learned about it outside of work?
Yes, without restriction. The opinion found that confidentiality statutes only cover information gained in an employee's official capacity; anything learned off-duty in a personal capacity falls outside those laws entirely.

Can a caseworker report a crime they personally witness during a home visit?
Yes. The opinion concluded a social services employee may report any crime witnessed directly, reasoning it would be absurd to read the confidentiality laws as silencing an employee who, for example, sees a client holding someone at gunpoint.

What if a client tells a caseworker they plan to commit a crime in the future?
The opinion concluded the employee may report a client's apparently genuine, serious intention to commit a future crime, drawing on the same logic that limits the attorney-client privilege: confidentiality protects candor about the past, not a green light to plan future harm.

Can a caseworker report a client's crime from the past that came up during an investigation?
Generally no, according to the opinion, unless a specific reporting statute applies (such as mandatory child-abuse reporting). The opinion reasoned that disclosing officially learned information about past conduct would undermine the trust the confidentiality laws are designed to build between clients and caseworkers.

Does a caseworker's specific job title change any of this?
Not according to the opinion, except where a statute imposes a reporting duty tied to a specific professional role (as the child-abuse reporting statute does for "human service workers"). Otherwise, the analysis is the same regardless of job classification.

Background and statutory framework

No general Maryland or federal law requires a citizen, including a state employee, to report a crime; Maryland courts have confirmed that reporting is a civic duty, not a legal one, absent a specific statute. The Legislature has created targeted exceptions: Family Law Article §§5-704 and 5-705 require "human service workers" and other listed professionals to report suspected child abuse or neglect "notwithstanding any other provision of law, including any law on privileged communications," and parallel statutes require reporting suspected abuse of nursing home residents, mental health facility residents, developmentally disabled individuals, and vulnerable adults. Separately, an executive order on state workplace drug policy requires Executive Branch employees to refer drug law violations they observe at their workplace to law enforcement.

Confidentiality protections for social services and welfare clients come from both federal and state sources. Federal grant conditions under the AFDC program, the Foster Care and Adoption Assistance program, the Child Welfare program, and the Child Abuse Prevention and Treatment Act all require states to restrict disclosure of client information to purposes connected with administering those programs (with a fugitive-felon exception under AFDC, and no other criminal-justice disclosure authorized). Maryland's own Article 88A, §6 makes it unlawful to divulge information about an applicant for or recipient of social services except to authorized officials for program administration, with a similar tight confidentiality rule for child abuse and neglect records. Maryland courts have read this confidentiality regime, following In re Cager, to bar even law enforcement from using welfare-derived information outside the purpose for which it was given, requiring what other courts applying analogous federal statutes have called a "welfare nexus" test (Whisler v. Whisler; Michigan Welfare Rights Organization v. Dempsey).

Because no court had directly addressed how these confidentiality rules apply to an employee's knowledge of a client's crime, the opinion reasoned by analogy to the attorney-client privilege, a comparable confidentiality doctrine meant to encourage full disclosure by clients (Fisher v. United States). That privilege does not protect a client's statement of intent to commit a future crime (Clark v. United States; In re Berkely & Co.), and does not protect an attorney's own observations of a client (United States v. Kendrick), but does protect disclosures about a client's past wrongdoing. Applying the same logic, and reading the confidentiality statutes in light of their purpose under Kaczorowski v. City of Baltimore and Morris v. Prince George's County, the opinion concluded social services confidentiality rules should track the same line: protect disclosures about past crimes learned officially, but not shield a caseworker who witnesses a crime or hears a credible plan to commit one in the future.

Citations and references

Statutes:

• Article 88A, §6 of the Maryland Code (confidentiality of social services and welfare client information)
• §§5-704, 5-705 of the Family Law Article (mandatory child abuse and neglect reporting)
• 42 U.S.C. §602(a)(9) (AFDC program confidentiality requirements and criminal-investigation exception)
• Executive Order 01.01.1989.05 (state workplace drug-offense reporting duty for Executive Branch employees)

Cases:

• In re Cager, 251 Md. 473 (1968) (welfare information may only be used for the purpose for which it was furnished)
• Kaczorowski v. City of Baltimore, 309 Md. 505 (1987) (statutory purpose controls over literal text where a literal reading produces an unreasonable result)
• Fisher v. United States, 425 U.S. 391 (1976) (purpose of confidentiality privileges is to encourage full client disclosure)
• Clark v. United States, 289 U.S. 1 (1933) (privilege does not protect communications in furtherance of a future crime)
• Whisler v. Whisler, 684 P.2d 1025 (Kan. App. 1984) (welfare confidentiality requires a "nexus" to program administration or investigation)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 415-430 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

SOCIAL SERVICES

Criminal Law -- Reporting of Crimes By Social Services Employees

July 31, 1990

The Honorable Carolyn W. Colvin
Secretary of Human Resources

You have requested our opinion on whether employees of local departments of social services have a duty or, if not, the discretion, to inform the police of criminal activity by their clients. Specifically, you have asked the following questions:

1. Is there any general duty for citizens, including State employees, to report crime?

2. Does the duty or discretion to report crime depend on whether a social services employee learns of the criminal activity in an official, as opposed to a personal, capacity?

3. Do the legal rules differ for acts of child abuse? Do they differ for criminal activity other than child abuse observed in the course of a child abuse investigation?

4. Does the employee's particular job affect this duty or discretion?

Your questions arise as a result of a potential conflict between laws designed to protect the confidentiality of those who apply for or receive social services, and society's interest in preventing criminal activity. You stated that the questions you have posed are asked frequently by local departments of social services.[1]

For the reasons stated below, we conclude as follows:

1. Except when a statute imposes reporting requirements, citizens, including State employees, have no legally enforceable duty to report a crime. However, Executive Branch employees are subject to discipline if they fail to report certain drug offenses.

2. The discretion to report a crime depends in part, but not exclusively, on whether a social services employee learns of the criminal activity in an official capacity. That is, the confidentiality restrictions that affect information gained in an employee's official capacity do not apply to information gained off-duty, in the employee's personal capacity. Hence, the employee has the discretion to report any or all information about a client's criminal activities gained in the employee's personal capacity.

A social services employee also has the discretion to report some, but not all, information about a client's criminal activities gained in the employee's official capacity. An employee may report any crime that he or she witnesses and any information about a client's apparently genuine intention to commit a future crime. Except as otherwise required by statute, an employee may not report officially obtained information about a client's past criminal activity.[2]

3. Certain professional employees are required by law to report any instance of suspected child abuse or neglect. Although the law does not mandate the reporting of other crimes observed during an investigation, an employee may report them to the police to the extent indicated in our second response above.

4. Except where a statutory reporting obligation addresses particular professions, an employee's job classification does not affect whether he or she reports a crime involving a client.

I

Background

A. Social Services Administration

The Social Services Administration ("SSA") of the Department of Human Resources is the "central coordinating and directing agency of all social service and public assistance activities of this State." Article 88A, §3 of the Maryland Code. In each county in Maryland, including Baltimore City, a local department of social services provides certain "social service and public assistance activities ...." Article 88A, §13(c). See generally 61 Opinions of the Attorney General 786, 787-88 (1976).[3] However, the Income Maintenance Administration ("IMA") within the Department of Human Resources is responsible for the "income maintenance functions," including aid to families with dependent children, previously the responsibility of SSA. Article 88A, §1A(a).

In administering the various programs, IMA, SSA and the local departments (and, it may be, other units within the Department of Human Resources) obtain information from or about public assistance and social service applicants and recipients. Much of this information is very personal in nature.[4] Federal and state laws and regulations have been designed to protect the privacy of these individuals and to encourage truthful responses when those administering State and federal welfare programs ask questions. To accomplish these objectives, the disclosure of confidential information is prohibited except under limited circumstances. See Part III below.

II

Duty to Report a Crime

A. Federal Law

A federal statute requires persons to report the commission of crimes that are felonies under federal law: "Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more then $500 or imprisoned not more than three years, or both." 18 U.S.C. §54.

Despite the statute's broad language, a mere failure to report is not sufficient for a conviction. Federal courts uniformly require an affirmative act of concealment. See United States v. Baez, 732 F.2d 780, 782 (10th Cir. 1984); United States v. Davila, 698 F.2d 715, 717 (5th Cir. 1983); United States v. Hodges, 566 F.2d 674, 675 (9th Cir. 1977). See generally Note, Forcing the Bystander to Get Involved: A Case for a Statute Requiring Witnesses to Report Crime, 94 Yale L. J. 1787, 1794 (1985).

B. Maryland Law

Under Maryland law, a citizen has no legal obligation to report a suspected crime, whether the crime is a felony or a misdemeanor, unless the General Assembly has imposed an obligation by statute. See 74 Opinions of the Attorney General 128 (1989).

The General Assembly has identified certain situations in which criminal activity must be reported. For example, §§5-704 and 5-705 of the Family Law Article ("FL" Article) set forth mandatory reporting requirements if the victim of suspected abuse or neglect is a child. Among other occupational groups, "human service worker[s]" who have reason to believe that a child has been subjected to abuse or neglect must report the pertinent facts, "notwithstanding any other provision of law, including any law on privileged communications...." See 75 Opinions of the Attorney General 76 (1990).[5] However, nothing in this statute, or any other, imposes a comparable legal duty with regard to other criminal activity that comes to light during an investigation of child abuse or neglect.

Similarly, §19-347(b) of the Health-General Article ("HG" Article) imposes an obligation to report the suspected abuse of a nursing home resident. See also HG §10-705(b) (duty to report suspected abuse of a resident of a mental health facility); HG §7-1005 (duty to report abuse of one who is developmentally disabled); and FL §14-302 (duty to report abuse of adult lacking the physical or mental capacity to provide for his or her daily needs). In addition, local departments of social services are required by regulation to report intentional violations of the AFDC program. COMAR 07.03.18.04.

Finally, employees of Executive Branch agencies are subject to executive orders that impose obligations relating to their employment. See 74 Opinions of the Attorney General 200 (1989). One such order, Executive Order 01.01.1989.05, "State of Maryland Substance Abuse Policy," contains the following provision on the reporting of crimes:

    Where justified by reliable information and/or observation, criminal violations shall be referred to the appropriate law enforcement authority for further investigation and prosecution.

Executive Order 01.01.1989.05 at 1B(2), 16:8 Md. Reg. 900 (April 21, 1989). In context, the term "criminal violations" refers to "[a]ny use of [an] illegal drug." 1A(4)(a).

The focus of the executive order is the "workplace," defined as "a State owned or utilized premise for official State business." 1A(5). The preamble states, in part, that a "drug-free workplace is fundamental to efficient, effective and responsive government" and that the "illegal use of the workplace as a market place for drugs endangers the health, safety and welfare of State employees."

Hence, we conclude that the duty to report crimes imposed by paragraph B(2) of the executive order generally requires Executive Branch employees, including employees at all levels of the Department of Human Resources, to report drug offenses at their offices.[6] The executive order, however, does not require the reporting of drug offenses that take place elsewhere.

III

Discretion To Report A Crime

A. Interpretive Principles

Although Maryland citizens do not have a legal obligation to report crimes, we have said that doing so is ordinarily "a civic duty." 74 Opinions of the Attorney General at 132. The reporting of crimes by State social services employees is complicated by the confidentiality requirements of their job, however. Whether a social service employee may report a crime involving a client depends on whether the confidentiality provisions discussed below prohibit the employee from doing so.

Unfortunately, no federal or state court has considered this question. Nor is the legislative history helpful. Moreover, the Office of General Counsel of the federal Department of Health and Human Services ("HHS"), the agency responsible for implementing the federal confidentiality provisions, informs us that it has never been asked to look at the question and thus has never provided interpretive guidance on the issue.[7]

To answer your questions, we must determine the legislative goal sought to be achieved by the confidentiality provisions and the purpose for their enactment. See Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628 (1987). "[O]ur endeavor is always to seek out the legislative purpose, the general aim or policy, the ends to be accomplished, the evils to be redressed by a particular enactment." Morris v. Prince George's County, 319 Md. 597, 603-04, 573 A.2d 1346, 1349 (1990).

In this pursuit we must begin with the language of the statute itself. Morris v. Prince George's County, 319 Md. at 603; Newman v. Subsequent Injury Fund, 311 Md. 721, 723, 537 A.2d 274 (1988). However, "[t]he aim or policy of the legislation against which we measure the words used, is not drawn ... out of the air; it is evinced in the language of the statute as read in the light of other external manifestations of that purpose." Kaczorowski, 309 Md. at 514. See also Watt v. Alaska, 451 U.S. 259, 263-6 (1981) ("The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have [a] literal effect."). Similarly, we "may consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense." Kaczorowski, 309 Md. at 513. Our conclusions reflect this approach.

B. Federal Confidentiality Requirements

Under the Aid to Families With Dependent Children ("AFDC") program, Title IV-A of the Social Security Act, 42 U.S.C. §601 et seq., the Secretary of HHS is authorized to make grants to the states to assist in "encouraging the care of dependent children in their own homes or in the homes of relatives." 42 U.S.C. §601. To qualify for such a grant, a state must, among other things, "provide safeguards which restrict the use or disclosure of information concerning applicants or recipients to purposes directly connected with" administering, investigating and auditing federal welfare programs. 42 U.S.C. §602(a)(9). Apart from circumstances not relevant to this discussion, disclosure is permitted only in "any investigation, prosecution, or criminal or civil proceeding, conducted in connection with the administration of [the state] plan or program" [§602(a)(9)(B)] and to a law enforcement officer searching for "a fugitive felon" [§602(a)(9)(D)]. Neither the statute nor the pertinent regulation contains an express authorization for disclosure of information for other criminal justice purposes. See 45 C.F.R. §205.50.

Under the Federal Foster Care and Adoption Assistance program, Title IV-E of the Social Security Act, 42 U.S.C. §670 et seq., the Secretary of HHS is authorized to make grants to the states "for foster care and transitional independent living programs." 42 U.S.C. §670. To qualify for such a grant, a state must "provide safeguards which restrict the use of or disclosure of information concerning individuals assisted under the state plan to purposes directly connected with" administering, investigating or auditing federal welfare programs. 42 U.S.C. §671(a)(8). The only express reference to criminal investigations limits disclosure to investigations of offenses "in connection with the administration of" the program itself. 42 U.S.C. §671(a)(8)(B). The pertinent regulation simply mirrors the statute. 45 C.F.R. §205.50(a)(1)(i)(B). See also 45 C.F.R. §§1355.21 and 1355.30.

The Child Welfare Program, Title IV-E of the Social Security Act, 42 U.S.C. §620 et seq., authorizes the Secretary of HHS to make grants to the states for "establishing, extending and strengthening child welfare services." 42 U.S.C. §620. To qualify for such a grant, a state must provide confidentiality safeguards similar to those required under AFDC and the Foster Care and Adoption Assistance program. See 45 C.F.R. 1355.21(a); 45 C.F.R. 1355.30; and 44 C.F.R. §205.50. Again, disclosure is permitted in "[a]ny investigation, prosecution, or criminal or civil proceeding conducted in connection with the administration of any such plans or program" [45 C.F.R. §205.50(B)] and to a law enforcement officer searching for "a fugitive felon" [45 C.F.R. §205.50(F)(v)]. No other disclosure for criminal justice purposes is authorized.

The Child Abuse Prevention and Treatment Act, 42 U.S.C. §5101, et seq., authorizes the Secretary of HHS to make grants to the states to assist "in developing, strengthening, and carrying out child abuse and neglect prevention and treatment programs." 42 U.S.C. §5103(b)(1). To qualify for such a grant, a state must provide "methods to preserve the confidentiality of all records in order to protect the rights of the child, and the child's parents or guardians." 42 U.S.C. §5103(b)(2)(E).

Regulations adopted by HHS under this act require states to "provide by statute that all records concerning reports and reports of child abuse and neglect are confidential and that their unauthorized disclosure is a criminal offense." 45 C.F.R. §1340.14(i)(1). The regulations, however, provide that state statutes may permit release of such reports to (1) various persons and entities who investigate reports of suspected abuse or who provide services to the child or the child's family; (2) the child named in the report or a person responsible for the child's welfare; and (3) a state or local official responsible for the administration or oversight of child protective services. 45 C.F.R. §1340.14(i) through (xi).

Finally, under the Food Stamp Program, a participating state must provide "safeguards which limit the use or disclosure of information obtained from applicant households to persons directly connected with" the program. 7 U.S.C. §2020(e)(8). However, "notwithstanding any other provision of law, all information obtained under [the program] from an applicant household shall be made available, upon request, to local, State, or federal law enforcement officials for the purpose of investigating an alleged violation of [the Food Stamp] Act or any regulation issued under this Act." 7 U.S.C. §2020(e)(8)(B).

C. State Confidentiality Requirements

Article 88A, §6 governs the disclosure of information concerning a person or family who has applied for or who is receiving social services or financial assistance. Subsection (a) provides as follows:

    Except in accordance with a court order or to an authorized officer or employee of the State, or the United States, or a fiduciary institution having a right thereto in an official capacity, and as necessary to discharge responsibilities to administer public assistance, medical assistance, or social services programs, it shall be unlawful for any person or persons to divulge or make known in any manner any information concerning any applicant for or recipient of social services, child welfare services, cash assistance, food stamps, or medical assistance, directly or indirectly derived from the records, papers, files, investigations or communications of the State, county or city, or subdivisions or agencies thereof, or acquired in the course of performance of official duties.

With regard to child abuse and neglect, Article 88A, §6(b) provides that, with limited exceptions, "all records and reports concerning child abuse and neglect are confidential." The exemptions to that prohibition against disclosure are similar to the types of disclosure permitted under HHS regulations. Compare, e.g., 45 C.F.R. §1314.14(i)(2)(i) and (iv) with Article 88A, §6(b)(2) (disclosure permitted to those investigating child abuse or those providing services to the child and family).[9]

Moreover, because Maryland participates in all of the federal programs discussed in Part IIA above, State regulations comply with federal confidentiality requirements. These regulations protect the confidentiality of "[a]ny information relating to individuals, whether recorded or not, which is acquired in the course of performance of official duties." COMAR 07.01.02.01. Further, "[t]he use of all information in possession of [SSA] shall be restricted to purposes directly connected with the administration of [SSA's] programs." COMAR 07.01.02.03(B). Moreover, SSA may disclose information without the consent of the client only under the following circumstances:

    (1) Upon proper legislative or judicial order;

    (2) to public officials for purposes directly connected with the administration of a program under titles, I, IV, X, XIV, XVI, XIX, or XX of the Social Security Act or of any other Federally assisted program which provides assistance or services to individuals on the basis of need;

    (3) Information relating to recipients under programs financed wholly by the State may also be given to public officials for purposes directly connected with the administration of such a State-financed program.

COMAR 07.01.02.04. Maryland has also adopted regulations to comply with federal confidentiality requirements pertaining to child abuse and neglect. See COMAR 07.02.07.18.

This concern for the protection of personal privacy is also reflected in the more general provisions of the Maryland Public Information Act. See §10-612(b) of the State Government Article ("SG" Article). Under SG §10-616(b), "[a] custodian shall deny inspection of public records that relate to welfare for an individual." Further, SG §§10-626 and 10-627 subject to civil and criminal liability anyone who willfully and knowingly permits inspection of a public record that names or otherwise identifies an individual, if disclosure of the record is prohibited by the Public Information Act.

D. Scope Of The Confidentiality Protections

Maryland's confidentiality laws, like similar federal laws, are intended to protect public assistance and social services clients from exploitation and embarrassment. In re Cager, 251 Md. 473, 482, 248 A.2d 384 (1967). They are also designed to provide a confidential forum in which clients feel that they can disclose complete and accurate information without fear of retaliation. These objectives are consistent with those underlying federal law, said by one court to be to prevent a recipient's exposure to exploitation or embarrassment; to preserve the dignity and self-respect of the welfare recipient; and to assure the integrity and efficiency of the welfare program. Krauskopf v. Giannelli, 467 N.Y.S.2d 542, 544-5 (Sup. Ct. 1983).

In Cager, the Court of Appeals held that a State's Attorney could not use information obtained directly from an AFDC recipient in order to bring a neglect proceeding. In light of the importance of confidentiality, the Court held, information obtained from the applicant could only be used for the purpose for which it was furnished, in that case, to enable a State's Attorney to obtain information about a non-supporting father, not to institute a neglect proceeding against the mother, the AFDC applicant. 251 Md. at 482-83.[10] The Court further held that a regulation adopted by the then Department of Public Welfare intended that welfare records "be used only by persons with appropriate authority, and only for purposes directly connected with the administration of welfare programs." 251 Md. at 482 (emphasis in original).

Courts interpreting federal law likewise have consistently required a welfare nexus before confidential information may be disclosed. For example, in Whisler v. Whisler, 684 P.2d 1025 (Kan. App. 1984), the court held that federal law prohibits a state that participates in the AFDC program from disclosing any information gathered regarding applicants or recipients of AFDC, unless "the person requesting the information is directly motivated by and concerned with (1) the administration of the program; (2) an investigation, prosecution, or criminal or civil proceeding conducted in connection with the administration of the program; or (3) other listed activities in 42 U.S.C. §602(a)(9)." 684 P.2d at 1031. See also Michigan Welfare Rights Organization v. Dempsey, 462 F. Supp. 227, 237 (E.D. Mich. 1978). In applying this nexus test, the court in Whisler held that a request for an AFDC recipient's address to enable a father to visit his minor child was neither "directly motivated by and concerned with the administration of" the AFDC program "nor ... within any other statutory exceptions to the general confidentiality afforded AFDC recipients under federal law." 684 P.2d at 1031. See also Michigan Welfare, 462 F. Supp. at 238 (disclosure of the names and addresses of AFDC recipients to their husbands or boyfriends cannot serve any of the permissible purposes specifically laid down by the federal statute). Cf. State of Wisconsin v. Moser, 334 N.W.2d 878, 881 (1983) (disclosure of AFDC information in paternity proceedings is permissible since paternity actions are "directly connected with the administration of the AFDC program").

E. Exceptions To Confidentiality Requirements

Because the courts have never addressed the applicability of these confidentiality requirements to information acquired by a social services employee about a client's criminal conduct, we cannot answer your question as assuredly as we would wish. Still, of one thing we are certain: It is unimaginable that these laws and regulations are intended to prohibit all reporting of client crimes by social services employees. We cannot suppose that Congress or the General Assembly intended to prevent a caseworker from reporting, for instance, that a client is holding a hostage at gunpoint.

To avoid absurd results like this, we must try to find a reasonable balance between the policies underlying the confidentiality requirements, on the one hand, and the paramount public policy goal of preventing criminal injury, on the other. It would be "inconsistent with common sense" to ignore the latter, and we do not think that the courts would do so in an actual case. See Kaczorowski v. City of Baltimore, 309 Md. at 513.

We may draw guidance from a comparable confidentiality requirement, the attorney-client privilege, a common law privilege deeply rooted in this nation's jurisprudence.[11] Like the confidentiality laws protecting welfare clients, the attorney-client privilege is designed to encourage clients to make full disclosure to their attorneys. Fisher v. United States, 425 U.S. 391, 403 (1976); State v. Pratt, 284 Md. 516, 519-20 (1979). Thus, an attorney may not reveal information from a client about past criminal conduct. See Weinstein's Evidence, 1503(d)(1)[01], at 503-117 (1990 Supp.).

The attorney-client privilege is not limitless, however. A client's communication in pursuit of a criminal or fraudulent act yet to be performed is not privileged. Clark v. United States, 289 U.S. 1, 15 (1933). "The reasons for the privilege all cease to operate where the desired legal advice refers not to prior wrongdoing, but to future wrongdoing." In re Berkely & Co., 629 F.2d 548, 555 (8th Cir. 1980). See also, e.g., Securities & Exchange Comm'n v. Gulf & Western Indus., Inc., 518 F. Supp. 675, 680 (D.D.C. 1981); Burlington Industries v. Exxon Corp., 65 F.R.D. 26, 40 (D. Md. 1974). As this office advised in regard to an individual who fraudulently provided false information to the Public Defender in order to qualify for representation, "[a]ny possible intrusion into the confidential relationship of attorney and client is outweighed by the competing interest of preventing fraud in obtaining Public Defender representation." 66 Opinions of the Attorney General 15, 17 (1981).

Also not protected by the privilege are observations an attorney makes of a client. An attorney may testify, for example, about the client's clothing or physical characteristics. See United States v. Kendrick, 331 F.2d 110, 114 (4th Cir. 1964). In discussing the privilege, the court in Kendrick held that a client's characteristics are "observable by anyone who talked with the client, and there is nothing ... to suggest that the client intends his attorney's observation of such matters to be confidential.... [T]he privilege protects only the client's confidences, not things which, at the time, are not intended to be held in the breast of the lawyer, even though the attorney-client relation provided the occasion for the lawyer's observation of them." Id.[12]

We cannot conceive any reason why the law would prohibit a social services employee from disclosing what an attorney is free to disclose, given the parallel policies of the two sets of confidentiality requirements. The law in both cases is intended to encourage unhampered discussion by providing a forum for a confidential relationship. The laws are not intended, however, to shield those who commit criminal activity. See People v. Bass, 529 N.Y.S. 1961, 963 (Sup. Ct. 1988) (the privilege should not be used "to cover a transaction which is in itself a crime").[13]

When a client tells an employee of an intention to commit a crime or to continue ongoing criminal conduct (or, more likely, when the employee hears this from others) and views the intent as serious, the information thus conveyed, in our view, is not intended to be protected by the confidentiality statutes. We distinguish the situation in which the client tells the employee of a past crime, with no suggestion of an intention to repeat the act. Here we do not believe that the law allows the employee to disclose this information. To do so would compromise the development of a relationship of trust between the client and the employee where the need to protect society is much less acute.[14] Just as the attorney-client privilege would bar disclosure of comparable information by an attorney, so too the confidentiality provisions applicable to a social services employee bar disclosure.[15]

Thus, we conclude that a social services employee who, in the course of official duties, witnesses a crime or learns of someone's serious intention to commit a crime is not prohibited from reporting that information to law enforcement authorities. We strongly recommend that the Department of Human Resources develop policies to govern this area of discretion.[16]

IV

Conclusion

In summary, it is our opinion that:

1. Except when a statute imposes reporting requirements, citizens, including State employees, have no legally enforceable duty to report a crime. However, Executive Branch employees are subject to discipline if they fail to report certain drug offenses.

2. The discretion to report a crime depends in part, but not exclusively, on whether a social services employee learns of the criminal activity in an official capacity. That is, the confidentiality restrictions that affect information about criminal activity gained in an employee's official capacity do not apply to information gained off-duty, in the employee's personal capacity. Hence, the employee has the discretion to report any or all information about a client's criminal activities gained in the employee's personal capacity.

A social services employee also has the discretion to report some, but not all, information about a client's criminal activities gained in the employee's official capacity. An employee may report any crime that he or she witnesses and any information about a client's intention to commit a future crime. Except as otherwise required by law, an employee may not report officially obtained information about a client's past criminal activity.

3. Certain professional employees are required by law to report any instance of suspected child abuse or neglect. Although the law does not mandate the reporting of other crimes observed during an investigation, an employee may report them to the police to the extent indicated in our second response above.

4. Except where a statutory reporting obligation addresses particular professions, an employee's job classification status does not affect whether he or she reports a crime involving a client.

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          Sharon Krevor-Weisbaum
                                          Staff Attorney

Jack Schwartz
Chief Counsel
Opinions & Advice

[1] In fact, just prior to your request, Alan M. Wright, Senior Assistant County Attorney for Montgomery County, asked us to look at very similar questions.

[2] In the past this office has provided informal advice on these and similar issues. Assistant Attorneys General have advised local departments that they may disclose a client's threat to commit a crime if disclosure would further the client's service plan. See Letter to Mr. Robert Shaffer, Director, Garrett County Department of Social Services from Assistant Attorney General Kathleen Morse (June 23, 1989); Letter to Ms. Carolyn Stayer, Assistant Director for Services, Harford County Department of Social Services from Assistant Attorney General Kathleen Morse (June 22, 1989). Although we agree with the advice authorizing disclosure, we do so for different reasons.

[3] This opinion reviewed the legal status of the local departments and concluded that they were part of the Executive Branch of State Government. 61 Opinions of the Attorney General at 793 and 795.

[4] For example, a social services employee who is working with a family "in crisis" will become intimately involved with the family. During this time, the employee will be privy to the family's most personal secrets, including drug or alcohol addictions, connections with criminal activity, interpersonal relationships, financial circumstances, psychological impairments, and so on.

[5] The term "human service worker" includes "any professional employee of any ... social or social service agency ...," including any social worker and any caseworker. FL §5-701(f).

[6] Failure to comply with this or other provisions in the executive order subjects an employee to discipline in accordance with the Merit System Law. 1B(12).

[7] We intend to seek a formal opinion from the HHS Office of General Counsel on whether HHS concurs with the conclusions reached in this opinion.

[8] Article 88A, §5(a) further provides that the "records, papers, files and communications" of SSA and local social service departments, when used by any other government agency "shall be limited to the purposes for which they are furnished."

[9] As amended by Chapter 234, Laws of Maryland 1986, Article 88A, §6(b) authorizes disclosure under the following circumstances: (1) Under a court order; (2) To personnel of local or State departments of social services, law enforcement personnel, and members of multidisciplinary case consultation teams, who are investigating a report of known or suspected child abuse or neglect or who are providing services to a child or family that is the subject of the report; (3) To local or State officials responsible for the administration of the child protective services as necessary to carry out their official functions; (4) To a person who is the alleged child abuser or the person who is suspected of child neglect if that person is responsible for the child's welfare and provisions are made for the protection of the identity of the reporter or any other person whose life or safety is likely to be endangered by disclosing the information; (5) To a licensed practitioner who, or an agency, institution or program which is providing treatment or care to a child who is the subject of a report of child abuse or neglect; or (6) To a parent or other person who has permanent or temporary care and custody of a child, if provisions are made for the protection of the identify of the reporter or any other person whose life or safety is likely to be endangered by disclosing the information.

[10] The Court focused its attention on Article 88A, §5 rather than §6. For purposes of this discussion, however, the Court's interpretation of §5 is equally applicable to §6.

[11] The common law attorney-client privilege in Maryland is now embodied in §9-108 of the Courts Article: "A person may not be compelled to testify in violation of the attorney-client privilege."

[12] Observations made by a social worker were held not privileged as such information was not "acquired in confidence." Lynna B. v. Gloradon M., 92 Cal. App. 3d 682, 155 Cal. Rptr. 256 (Ct. App. 1979).

[13] We note also that when the General Assembly enacted the statutory accountant/client privilege, §9-110 of the Courts Article, intending "to protect the expectation of privacy of individuals in matters involving contracts, domestic disputes, and other civil and equity controversies ..., it did not seek to create an expectation of privacy involving possible violations of the criminal ... laws ...." In re Special Investigation No. 202, 53 Md. App. 96, 103, 452 A.2d 458 (1982).

[14] The implied exception to confidentiality strictures discussed above might also permit disclosure of information about certain heinous past crimes that by their compulsive nature (serial murder, for example) present an inherent risk of repetition even without an expressed intention to repeat the crime.

[15] Although communications made by a client to a licensed social worker while receiving counseling are privileged, we believe that the same exceptions govern that relationship as govern the other confidential relationships we have discussed. See §9-122(b) of the Courts Article.

[16] It is a matter of professional judgment whether, under some circumstances, a social services employee ought to refrain from reporting, for example, a comparatively minor drug possession offense that the employee witnesses, in order to be able to continue to provide services like drug treatment therapy to the client. See §5-316(c) of the Courts Article (mental health providers have the option of providing treatment or informing law enforcement officials that a patient intends to inflict an injury to a specified victim).