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Elijah W v. the Superior Court of Los Angeles County

May 8, 2013


(Super. Ct. No. GJ29441) ORIGINAL PROCEEDINGS in mandate. Robert Leventer, Juvenile Court Referee.

The opinion of the court was delivered by: Perluss, P. J.

Opinion following grant of rehearing


Petition granted.

A lawyer is obligated to preserve the confidentiality of client information. (Bus. & Prof. Code, § 6068, subd. (e)(1); Rules Prof. Conduct, rule 3-100(A); see Evid. Code, §§ 954, 955.) As a narrow exception to this duty, a lawyer may, but is not required to, reveal confidential information relating to the representation of a client to the extent the lawyer reasonable believes the disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm. (Bus. & Prof. Code, § 6068, subd. (e)(2); Rules Prof. Conduct, rule 3-100(B); see Evid. Code, § 956.5.) An expert engaged to assist the lawyer in his representation of a client is similarly obligated to maintain the confidentiality of client communications obtained in the course of accomplishing the purpose for which the lawyer was consulted. (Evid. Code, §§ 912, subd. (d), 952; see also Cal. Law Revision Com. com., 29B pt. 3A West's Ann. Evid. Code (2009 ed.) foll. § 952, p. 307.)

Under the Child Abuse and Neglect Reporting Act (CANRA) (Pen. Code, § 11164 et seq.) psychiatrists, psychologists, clinical social workers and other mental health professionals are "mandated reporters" (Pen. Code, § 11165.7, subd. (a)(21)) and, as such, have an affirmative duty to report suspected child abuse or neglect to a child protective agency or other appropriate authority. (Pen. Code, § 11165.9.) Failure to report suspected abuse is a misdemeanor. (Pen. Code, § 11166, subd. (c).) The duty to report is not excused or barred by the psychotherapist-patient privilege of Evidence Code section 1014. (Pen. Code, § 11171.2, subd. (b); People v. Stritzinger (1983) 34 Cal.3d 505, 512; see Evid. Code, § 1027.) Lawyers, however, are not mandated reporters.

Faced with these two divergent legislative schemes, what is the obligation of a psychologist retained or appointed as an expert to assist a lawyer representing a juvenile accused of committing a crime who learns the client is either the perpetrator or has been the victim of child abuse? Must the therapist comply with the affirmative duty to report imposed by CANRA? Or does the obligation of the lawyer and the lawyer's team to maintain the confidentiality of client information, together with the lawyer-client privilege, prevail over the mandated reporter law? Do those obligations also trump a psychotherapist's duty under Tarasoff v. Regents of California (1976) 17 Cal.3d 425 (Tarasoff) to protect reasonably identifiable victims from a patient's threatened violent behavior?

These vexing questions, without a clear answer under California law, were raised in the juvenile court proceedings now before us. To assist in the preparation of his defense to a wardship petition, Elijah W. sought the appointment of Dr. Catherine Scarf, a psychologist who had indicated she would respect the lawyer-client privilege and defense counsel's duty of confidentiality and would not report client information concerning child abuse/neglect or a so-called Tarasoff threat to authorities. The juvenile court denied the motion, ruling Elijah's defense team was limited to members of the court's juvenile competency to stand trial (JCST) panel, notwithstanding that panel members had informed Elijah's counsel they would report to authorities any information of child abuse/neglect or Tarasoff threats.

The court erred in limiting Elijah's choice of expert assistance in this manner. In the absence of clear legislative guidance, we decline to read into CANRA a reporting requirement that contravenes established law on confidentiality and privilege governing defense experts and potentially jeopardizes a criminal defendant's right to a fair trial. Accordingly, we grant his petition for a writ of mandate and direct the court to vacate its order denying the motion to appoint Dr. Scarf as a defense expert and to issue a new order granting the motion.


On December 28, 2011 the People filed a two count wardship petition under Welfare and Institutions Code section 602 alleging Elijah, then 10 years old and in the fourth grade, had committed arson (Pen. Code, §§ 451, subd. (c) [willfully setting fire to a structure], 452, subd. (c) [recklessly burning a structure]). A deputy public defender was appointed to represent Elijah.

1. Elijah's Motion for Appointment of a Defense Expert

On March 6, 2012 Elijah, through counsel, moved pursuant to Evidence Code sections 730 and 952 for the appointment of Dr. Scarf as an expert "to assist counsel in conducting reasonably necessary psychological evaluations, assessments and other activities related to the presentation of the case." In particular, Elijah's counsel stated, "Given his age and our minimal communication, I have serious concerns regarding whether he can fully understand these proceedings and cooperate rationally with counsel. Counsel is aware of the high rate of developmental immaturity with younger juveniles in court and it would be ineffective assistance of counsel if counsel did not appoint an expert to evaluate how Elijah['s] age impacts his ability to comprehend the proceedings and participate in his defense."

Elijah explained the selection of Dr. Scarf, who was on the Los Angeles Superior Court's approved panel of psychiatrists and psychologists but not the JCST panel, was based on her assurance she would report any information concerning child abuse and/or neglect or Tarasoff threats obtained during her assessment of Elijah only to Elijah's counsel. "Dr. Scarf indicated that it is her position that her duty as a mandated reporter is satisfied by reporting this information to the attorney given her appointment as a forensic expert appointed under the attorney-client privilege. Further, Dr. Scarf stated that the [American Psychological Association] guidelines are consistent with her position." In contrast, the members of the JCST panel, when interviewed by an attorney in the public defender's office, said they would report to law enforcement or child welfare authorities any information regarding child abuse and/or neglect or Tarasoff threats despite the fact they were appointed to assist Elijah's counsel and their work would otherwise be protected from disclosure by the lawyer-client privilege. Elijah argued appointment of a defense expert who would not protect the confidentiality of lawyer-client privileged information violated his constitutional right to the effective assistance of counsel.

2. The Juvenile Court's Amended Competency To Stand Trial Protocol

Welfare and Institutions Code section 709, subdivision (a), provides, "During the pendency of any juvenile proceeding, the minor's counsel or the court may express a doubt as to the minor's competency. . . . If the court finds substantial evidence raises a doubt as to the minor's competency, the proceedings shall be suspended." Section 709, subdivision (b), in turn, provides, "Upon suspension of proceedings, the court shall order that the question of the minor's competence be determined at a hearing. The court shall appoint an expert to evaluate whether the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair the minor's competency. The expert shall have expertise in child and adolescent development, and training in the forensic evaluation of juveniles, and shall be familiar with competency standards and accepted criteria used in evaluating competence. . . ."

To implement Welfare and Institutions Code section 709, which was enacted in 2010, the Los Angeles Superior Court has adopted a protocol setting forth basic procedures to be followed and establishing a panel of qualified psychiatrists and psychologists to conduct all juvenile competency assessments: "If the court suspends proceedings, or grants minor's request for a CST [(competency to stand trial)] evaluation, it shall appoint an expert from the Juvenile Competency to Stand Trial Panel (JCST Panel) under Evidence Code ยง 730 to perform a CST evaluation. The JCST Panel shall consist of experts in child and adolescent development, who have training in the forensic evaluation of juveniles, and are familiar with the competency standards and accepted criteria used in evaluating competence. [fn. omitted.] The Juvenile ...

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