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Jewish World Review Dec. 6, 2010 / 29 Kislev, 5771 Can You Keep A Secret? By Alan Douglas
http://www.JewishWorldReview.com |
Company parties, family gatherings, New Year's Eve confessions, can all be sources of confidential information. But what is really confidential? There are a lot of people who entrust others with their secrets. They expect the information they share to remain a secret. Some of it is gossip, some is venting, some is given while asking for advice, and some is just the desire to talk. Before you share your secrets with another person, you should understand the difference between legally privileged communications that are protected by the law, and what and when that information is not protected. Don't confuse secrets, confidential information, and privileged communications. I can't describe all of these adequately in this column, but I can give you enough information to start you thinking about it BEFORE you speak, or listen, and get yourself in trouble.
You can determine who you trust and who do not trust to pass along what you tell them. The law determines who, what information, and under what circumstances, information can be withheld. It is not easy to pick the "who" part, since it changes. Talk about your taxes and how you cheated the United States government by writing off your vacation as a business expense to your attorney and it is privileged. Express your guilt and sorrow over the transgression to your clergy and it is privileged. Tell it to your accountant and it is not protected. In Europe, rule for accountants are different. In Europe the accountants are so smart that many accounting firms own and control law firms. Therefore, the smart European accountants also are afforded legal privilege for communications with clients. So, if you talk to your attorney, who has an accountant on their staff, it is privileged, even in the United States. Tell your boss or the friendly, concerned Human Resources Manager, or anyone else in the company, something "in confidence" and you might as well shout it from the rooftop. There is no "in confidence" unless a Court says there is. Even Confidentiality Agreements or clauses in contracts meant to keep information confidential, don't hold water unless there is a specific legal provision protecting the people, the type of information, and the circumstances.
The "what" is said, can trip you up. If it is a real threat of a crime, your doctor or psychiatrist may be forced to snitch on you. The rules of religious orders, medical, and legal professions, may impose higher or lower (but different) standards than what you think. Whistle blowers are protected sort of, maybe; under the law. But only if a Whistle Blower blows the whistle in precisely the right way, about the right things. And the courts are still debating what that is.
When speaking to reporters, do not fall into the freedom of the press trap. The privilege to keep things confidential is not generally recognized by the courts. And more importantly, it is the press, the reporter, and their corporate media giant, that is being protected, not you, the source. In addition to the legal media issues, remember that "off the record," much like "beauty", is in the eye of the beholder. Most reporters demand you must play the "Mother May I" game. You have to say, "Off the record" and they have to agree to keep it "Off the record," before you spill your guts. A retroactive, "You can't use my name" or "That is just background" after you told a reporter, is worthless. And even if you and the reporter think it won't get out, do not count on the reporter's editor, a judge, or the reporter's wife keeping your name and information secret.
Lawyers are generally allowed to violate even privileged, protected, information given them by their clients, to defend themselves against charges of wrongdoing, and in an action by the lawyer to collect their fees. So, think twice before you badmouth or stiff your attorney. And if someone else sues your attorney related to their representation of you, be forewarned that your attorney may be able to spill the beans about you.
Be careful not to promise that you won't tell a soul, or that someone's secret is safe with you, when you can't keep your word. Your colleague at work isn't just your friend. You are both employees of an organization. The organization where you earn your living is the same one to which you have a duty of loyalty and legal obligations. When you obtain information, you may be obligated to inform your boss. Learn to stop people who are about to tell you gossip and dangerous secrets. If someone tells you they are stealing, playing with the budget, numbers, or backdating, you may be required to raise the alarm. You may have information of a crime related to fraud, securities violations, or worse, once your friend boasts about getting away with a sordid act. Be prepared to stop them from telling you what you really do not want to know. Remind them that including you in a group sharing toxic information, is like exposing you to radiation.
This isn't to say that you can't tell and listen to secrets. It is to remind you that a secret, confidential information, and privileged communications, are all different based on what, where, how, who, and when you spilled the beans.
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JWR contributor Alan Douglas, an author, media executive, speaker, and attorney, lives con brio- except when he is grumpy.
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© 2010 Alan Douglas
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