Monday, February 25, 2013

Elija W. v. Superior Court (Cal. Ct. App. - Feb. 25, 2013)

At first I thought that maybe style was getting in the way of substance in this opinion.  The writing is very chunky (i.e., does not flow very well), even for an opinion in the Court of Appeal.  (That latter phrase is a slight slam on opinions that totally look like the bench-memoranda-slash-draft-dispositions that they once were, and is a description that's quite apt here.)  Moreover, it and it takes Justice Woods a long time to get to the point.  The reader does not really get to Justice Wood's actual analysis until the final two pages, which I found a little frustrating.  As a result, it's possible that my reaction to the Court of Appeal's conclusion is perhaps based in part upon an emotive, rather than intellectual, reaction.

Nonetheless, on the merits, I have some real problems with the Court of Appeal's analysis, as well as its ultimate holding.

It's essentially a test case.  Defense counsel wants the trial court to appoint an expert to evaluate the competency of a juvenile client who's been accused of arson.  Since the trial courts in Los Angeles have been around this block before, they've screened and appointed a panel of approved experts for precisely this purpose.  Efficiency, quality, etc.

But defense counsel knows -- presumably based upon prior communications with some of the experts -- that the experts on the panel feel compelled to disclose any instances of child abuse they might learn in the interviews, on the ground that they're mandatory reporters.  Counsel also learns that the experts will also disclose any active threats by the interviewee to kill people, on the ground that if they fail to do so, there's liability under Tarasoff.

Counsel doesn't like that, and thinks that everything should be confidential.  So he finds an expert off the panel who says that she wouldn't disclose anything like that even if she found out about it, and who says that she'd instead only report it to the attorney.  So counsel moves to have the non-panel expert appointed.

Does the attorney have any reason to believe that the client will reveal anything like abuse or threats?  No.  Not at all.  But it's nonetheless possible.  And counsel doesn't like the fact that the L.A. panel experts do not concur with counsel's evaluation of their legal and ethical duties.  So files a writ petition when the trial court denies the request to have the "keep it quiet" expert appointed.

The trial court thought -- correctly, in my view -- that this was all an "academic" dispute, since there was no reason whatsoever to believe that anything like that would happen here.  But Justice Woods is right that just because there's no reason to think that a problem will transpire here doesn't mean it won't.  As a result, there is standing, and the Court of Appeal is permitted to reach the merits if it wants.  (Mind you, the fact that the petitioner here faces no real problem himself may perhaps be relevant to whether the Court of Appeal wants to grant an extraordinary writ, but I can at least see an argument that it nonetheless makes sense to review this issue now.  Not that the Court of Appeal actually makes that argument, but if it did, I might potentially be persuaded by it.)

Which leads us to the merits.  And that's my problem.

First, let's talk about child abuse.  I had to read the opinion three times, and even then, I'm still not sure why -- or even how -- the opinion comes out the way it does.  There's a whole lot of discussion as to whether the basic attorney-client privilege applies.  But there's a specific statute on this point that's very simple, and even after reading the opinion multiple times, I'm at a loss to understand why the Court of Appeal doesn't think it applies.  The statute says that "mandated reporters" have to report instances of child abuse.  They have to do so even when they learn about child abuse in a confidential context.  Moreover, the text of the statute expressly includes, amongst its numerous sections defining who counts as a mandatory reporter, psychologists and psychiatrists, including but not limited to those at issue here.  So the statute reasonably clearly, in my view, requires disclosure, and trumps any competing privilege -- including the attorney/client privilege -- just like everyone concedes it trumps the analogous doctor-patient privilege.

What does the Court of Appeal say about that?  I honestly can't tell.  I see some discussion of whether an attorney is a mandatory reporter, which is not especially relevant to the issue.  And I see general discourse into whether communication with third parties may be covered by the attorney-client privilege, but, again, a conclusion either way on this issue doesn't matter to whether the Child Abuse and Neglect Reporting Act trumps that privilege in the same way it undeniably trumps other privileges.  So I can't understand how the Court can come to a conclusion that the statute doesn't apply.

Moreover -- and this is perhaps the weirdest part -- even after reading the opinion multiple times, I don't even know whether the court thinks the statute applies.  Here's the money quote from the Court of Appeal that states its holding on this issue:  "The conclusions of the therapists on the JCST panel that they would be compelled to reveal any disclosures made by petitioner are therefore incorrect.  In this situation, as experts appointed to aid the defense, they are bound by the attorney-client privilege.  Dr. Scarf's position that she need only report information about child abuse or neglect or threats of violence to petitioner's attorney is correct."

You can read this holding one of two ways.  One way is to say that the Court of Appeal is holding that the statute doesn't apply.  This seems wrong to me, but whatever.  But if that's the case, why does the Court of Appeal hold -- in the final sentence of the quote -- that the appointed expert is required ("need only") report information child abuse or neglect "to petitioner's attorney"?  There's a duty to disclose only if the mandatory reporting statute applies; otherwise, the expert need only report relevant information about the defense -- if even that -- to counsel.  So, by finding a duty, it seems like the Court of Appeal thinks (like Dr. Scharf) that the statute applies, but that reporting to counsel ("alone") satisfies it.

But that's clearly wrong.  The statute -- which I had to look up, because the Court of Appeal never quotes it -- expressly says that mandatory reporters have to file a report with the police and/or sheriff.  That's Section 11169.5 of the Penal Code.  Period.  Reporting to an attorney indisputably doesn't count.

So, in the end, I'm at a loss to even explain the Court of Appeal's holding regarding the relevant duty, much less am I capable of figuring out coherently how they got there.  Now, look, maybe I'm stupid.  Maybe I am getting super old and incapable of reading opinions, or understanding cogent legal arguments.  I can only say that, if that's the case, it's not for lack of practice.  And that, perhaps, I'm not alone in finding the Court of Appeal's analysis here both substantively skimpy and -- at a minimum -- not nearly as persuasive as Justice Woods surely would have hoped.

Moreover, recall that the child abuse point is only half of the relevant inquiry.  The other reason the panel experts said they'd disclose is because they have a Tarasoff duty to do so.  Pursuant to an express decision of the California Supreme Court that says that if a psychologist or psychiatrist learns -- even pursuant to a privileged conversation -- the a patient actively plans on harming a third party, the therapist is required to disclose that fact under penalty of liability.

Given that opinion, it makes a lot of sense for the experts on the panel to say -- as they all did to defense counsel -- that if they did in fact learn about an active threat to harm someone, yeah, they'd be required to, and would, disclose that fact.  Right?

Not according to the Court of Appeal.  Which attempts to distinguish Tarasoff in two ways.

First, the Court of Appeal argues that its conclusion "is not at odds with Tarasoff, since in that case, the therapist was hired for therapeutic purposes, and was not a therapist hired to assist defense counsel."  Well, yeah, that's a difference between the Supreme Court's case and this one.  So's the fact that the therapist's name in Tarasoff was "Lawrence Moore" whereas here it's proposed to be "Rebecca Scharf".  But why does that matter?  There's no indication whatsoever in Tarasoff that the underlying civil duty depends on whether the psychiatrist is acting for "therapeutic" purposes or for evaluative ones.  Moreover, the California Supreme Court's substantive analysis in Tarasoff seems powerfully applicable to both scenarios.  The court in Tarasoff held that, for policy reasons, the values behind the underlying privilege do not outweigh the duty to prevent foreseeable harm (e.g., death) to another.  Presumably that same weighing -- preventing death is more important that preserving confidentiality -- would apply equally in both therapeutic and non-therapeutic settings.  So if the Court of Appeal is really making the somewhat revolutionary holding that therapists who are seeing patients but not "treating" them are no longer subject to Tarasoff, it needs to clearly say so, and also needs a lot more support for that result than the one-sentence distinction it offers here.  I'm sure there would be plenty of applause from a number of therapists if the Court of Appeal wanted to make that step, but I'm not at all convinced that such a move either makes sense from a policy perspective or is consistent with California Supreme Court precedent.

Moreover, I'm not even sure that Justice Woods is really hanging the opinion on this point, or (perhaps) even means to make it.  Since the opinion concludes with a section that says that Tarasoff isn't a privilege case anyway, but only a "civil liability" case.  Thus, Justice Woods holds, it's not really relevant to whether a defendant should be entitled to retain an expert who feels like running whatever risk exists.

Now this, I think, is a distinction between the present case and Tarasoff.  The latter undeniably dealt with civil liability, and the present case doesn't.  So I agree with Justice Woods that we have to dig deeper.

But I'm still not convinced that this means that the result isn't the same.  Yes, Tarasoff said that therapists have a duty backed up by civil liability.  But that includes the first part of that sentence as well -- the duty part.  Therapists have a duty to disclose.  A duty backed up by law.  In short, the California Supreme Court has clearly imposed a legal duty upon therapists to disclose threats of harm.

Now, it may well be that a defense counsel could find an expert who is willing to violate that legal duty.  But, notwithstanding what the Court of Appeal here holds, it hardly seems an abuse of discretion for a trial court to refuse to appoint such an expert.  That seems perfectly within a trial court's right.  Alternately, a therapist might take a different view of his or her duty.  If the expert was right, then I agree that it would be an abuse of discretion not to appoint the expert.  But, for the reasons explained above, it seems to me that the expert here has reached a legal conclusion that is wrong, and it seems to me entirely permissible -- indeed, likely preferable -- for a trial court to take that into account in deciding whom to appoint.  A trial court would not abuse its discretion by appointing only those experts who indicated that they would be willing to comply with the legal duties imposed upon them by the judiciary.  How could anything make more sense than that?

It's not like I don't value confidentiality.  I do.  Seriously.  A lot.  I'd potentially be persuaded if someone tried to tell me that the Child Abuse and Neglect Reporting Act goes too far, or that Tarasoff was wrongly decided.  I'd listen carefully if someone argued that, at least in a privileged setting, the values advanced by the relevant privilege -- the critical need for confidentiality in privileged communications -- outweigh society's interest in discovering child abuse or preventing third party harm.  I'm not saying that I'd necessarily agree, but I think that there's more than a reasonable argument to be made along those lines.  In short, I'm not at all entirely unsympathetic with a pro-privilege view.

But here's the thing:  California doesn't agree.  It passed a statute that, at least with respect to child abuse, has clearly made a contrary value judgment.  The Legislature believes that confidentiality -- i.e., privilege -- does not trump the statute.  And that statute, as well as its underlying value judgment, seems more than just a little bit applicable here.  With respect to third party harm, the California Supreme Court made a similar policy choice, and imposed a legal duty to disclose.  End of story.  Sure, a defendant, his counsel, and even his appointed therapist might not like it.  But it's the rule.  The privilege does not outweigh.

So, in short (and that's using the word exceptionally loosely, as this this post is "short" only in the context that academic law reviews use that term), I think that the Court of Appeal not only gets this one wrong, but gets it badly wrong.  And, at a minimum, that Justice Woods' opinion is not nearly as persuasively written as it would need to be in order to justify the fairly significant departure from existing practice embraced by the Court of Appeal here.