1. Confidentiality and Privilege: An Exploration of Best Practices in Collaboration April 1, 2014 2014 Freedom Network Anti-Trafficking Conference

2. Is there confidentiality? Survivor Attorney Law Enforcement Case Manager Licensed Medical Provider 2014 Freedom Network Anti-Trafficking Conference

3. Is there confidentiality? Survivor Attorney Law Enforcement Case Manager Licensed Medical Provider 2014 Freedom Network Anti-Trafficking Conference Remember that communications with law enforcement are not necessarily confidential

4. What is Confidentiality? Attorney-Client A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by an exception. Some Exceptions: – To prevent death or substantial harm – To prevent the client from committing a crime or fraud that results in substantial injury – To comply with other law or a court order See Rule 1.6 of the ABA Model Rules of Professional Conduct 2014 Freedom Network Anti-Trafficking Conference

5. What is Confidentiality? Case Manager-Client* Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. Some Exceptions: – To prevent imminent harm to the client or another – When a court of law or legally authorized body requires the disclosure See Rule 1.07 of the Code of Ethics of the National Association of Social Workers *Note: Not all case managers are social workers and each agency will set its own policies and procedures around client confidentiality based on state law. 2014 Freedom Network Anti-Trafficking Conference

6. What is Confidentiality? Medical Professional-Patient The record is a confidential document involving the patient-physician relationship and should not be communicated to a third party without the patient’s prior written consent, unless required by law or to protect the welfare of the individual or the community. See Opinion 7.02 of the American Medical Association Code of Medical Ethics 2014 Freedom Network Anti-Trafficking Conference

7. Tips on Confidentiality Having a third party present during a communication usually breaks confidentiality – Consider whether the presence of that third party is necessary – If the presence of a third party is deemed necessary, ensure that the client is aware of the risk – Email communications come with a risk, consider whether certain discussion should be conducted in person or over the phone – A common legal interest amongst all parties might continue to protect the communication in an attorney-client relationship 2014 Freedom Network Anti-Trafficking Conference

8. Is there a Protected Privilege? Survivor Attorney Licensed Medical Provider Case Manager 2014 Freedom Network Anti-Trafficking Conference

9. Is there a Protected Privilege? Attorney-Client “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial. See Rule 502 of the Federal Rules of Evidence Note: If the information that the attorney is trying to protect is available through other sources it is not protected 2014 Freedom Network Anti-Trafficking Conference

10. Remember For the attorney-client privilege to apply the communication between the attorney and the client needs to: – Be legal advice – Be confidential – Client does not want this information to be disclosed Underlying facts of a communication are not privileged TIPS Identify what communication is privileged and what documents should be protected if litigation is anticipated Determine who needs to receive the legal advice Establish intra-office policies on copying and distributing documents that contain legal advice or opinions 2014 Freedom Network Anti-Trafficking Conference

11. Is there a Protected Privilege? Other communications that can be protected by privilege Psychotherapist-patient Husband-Wife Communications to clergyman What if I use an interpreter in communicating with my client, would this still be privileged communication? It depends on each state but most likely yes 2014 Freedom Network Anti-Trafficking Conference

12. Case Study Part 1 Celia is a seventeen year old from Romania. She recently sought legal advice about her immigration status because her tourist visa is about to expire. She discloses to the attorney that she has been working in a strip club. She likes working there and working with the other girls makes it seem like a family. In Romania she really has no one and since meeting Ralph she feels like someone cares about her. Ralph is the owner of the strip club. The attorney explains to Celia what a trafficking victim is and what rights she has. She doesn’t identify as a victim but says she’ll consider her options. At her next appointment, Celia comes in with bruises all over her face. When asked what happened she says that Ralph was mad because a client kissed her. She is scared of Ralph. The attorney explains that reporting this to law enforcement is a good idea and asks if she feels comfortable doing this. She says that she does not want to involve law enforcement and that all she wants is help with her immigration status. A few weeks later Celia missed her appointment with the attorney and her phone is disconnected. That same day the attorney receives a call from an FBI agent who says that they have conducted a raid in a strip club. Girls in the strip club mention that minors were also working there but that a girl named “Lindsey” had disappeared along with the strip club owner. While searching in Lindsey’s room they found the attorney’s business card and decided to call her to see if she had any information. What should the attorney do? 2014 Freedom Network Anti-Trafficking Conference

13. Case Study Part 2 The FBI locates Celia. When they find her she has no belongings with her only the clothes she is wearing. She needs help finding food, clothing, and shelter, among other needs. The FBI agent refers Celia to NTAC, and notifies her immigration attorney that Celia has been found. Her NTAC case manager tells Celia that anything they discuss will be kept confidential—except if there’s suspicion of child abuse and/or neglect, possible suicidal behavior, or possible homicidal of physical violence toward another party. The case manager tells Celia about the services available to her, helps her create a safety plan, and creates a service plan to meet her immediate needs. Celia agrees that staying at a domestic violence shelter for a few days will be the safest and will give her some time to decide what she wants to do next. The FBI agent calls Celia the next day and she doesn’t answer. The agent then reaches out to the case manager and asks where Celia is. What should the case manger do? 2014 Freedom Network Anti-Trafficking Conference

14. Case Study Part 3 Celia agreed to provide testimony against Ralph in a federal case. To prepare Celia for court, the federal prosecutor meets with her to explain what will happen. Before the interview begins, the prosecutor takes some time to build rapport and prepares Celia for the questions he will ask. During this interview, Celia begins to tell the federal prosecutor how she entered the United States. What should the prosecutor do? 2014 Freedom Network Anti-Trafficking Conference

15. Resources 2014 Freedom Network Anti-Trafficking Conference ABA Professional Responsibility Guidelines: http://www.americanbar.org/groups/professional_responsibility.html Who is a Mandated Reporter? https://www.childwelfare.gov/systemwide/laws_policies/statutes/manda.pdf#P age=2&view=Fit https://www.childwelfare.gov/systemwide/laws_policies/statutes/manda.pdf#P age=2&view=Fit Mandated reporter laws by state: https://www.childwelfare.gov/systemwide/laws_policies/state/index.cfm https://www.childwelfare.gov/systemwide/laws_policies/state/index.cfm NASW Ethics Hotline (617) 227-9635

16. Contact Rocio Alcantar Supervising Attorney National Immigrant Justice Center ralcantar@heartlandalliance.org (312) 660-1322 Megan Mahoney Director Northern Tier Anti-Trafficking Consortium (NTAC) Heartland Human Care Services mmahoney@heartlandalliance.org (312) 662-6186 Andy Huang Assistant U.S. Attorney Northern District of California 510-637-3703 office andrew.huang@usdoj.gov 2014 Freedom Network Anti-Trafficking Conference