Thursday, August 13, 2015

When Human Trafficking Survivors Have an Attorney: Confidentiality

This blog entry is the first in a series offering a few tips for working with human trafficking survivors who are represented by an attorney. This entry discusses confidentiality.

Our work in the University of Michigan’sHuman Trafficking Clinic (HTC) is, at times, complicated by our clients’ relationships with volunteers and other professionals (e.g. law enforcement officers, prosecutors, defense attorneys, social workers, and therapists). We do not doubt that volunteers and other professionals are good-hearted people who want to help our clients. But, as in all interdisciplinary work, when more than one “helper” is involved there can be challenges.

Attorneys are legally and ethically bound to maintain a confidential relationship with clients. When an attorney and a client talk, their conversations are protected by the attorney-client privilege. Attorneys must keep those privileged conversations private unless the client or some other law permits the privilege to be broken. This is important for a few reasons.

First, a conversation between an attorney and client is not considered a privileged conversation if someone else is present. If a support person (e.g. a friend, relative, or volunteer advocate) wishes to be present for a client meeting, the conversation will not be privileged even if the client consents to the person being there. If you are asked to accompany a survivor to a meeting with an attorney, you should assume that it is fine to go along and wait outside the meeting to lend support. Generally it is best for support persons to exclude themselves from attorney meetings.

Attorney confidentiality also restricts our ability to share information with others. If you are helping a survivor and you need information about a legal matter, the client must give the attorney explicit permission to share information with you. Advocates call us and ask about the status of a client’s case. Please do not be offended if we cannot share information with you. If clients choose to share information and waive confidentiality, they may. Of course, no one should be pressured to waive confidentiality as it allows the client and attorney to speak honestly with each other about information that a client may not choose to share with anyone else.

Finally, attorneys may not reveal the identity of their clients without the clients’ consent. So, if our client has not publicly acknowledged HTC as his or her attorney, we will not confirm or deny to you whether or not we represent a survivor. We cannot even tell our current clients the names of our other clients without explicit consent from each client. So, you could have a conversation with one of us about a survivor and be surprised to later learn that we represent that survivor. Please do not be offended that we didn’t inform you during the conversation! Our rules require us to keep that information confidential.

TAKE ACTION: If you or someone you know wishes to contact HTC for legal advice and/or possible representation, please call 734-615-3600.

Suellyn Scarnecchia is a Clinical Professor of Law at the University of Michigan Law School.