Confidentiality: Are There Still Unanswered Questions?
Confidentiality matters can seem black or white, with little to discuss in terms of ethics. Occasionally, a gray area emerges, which is worth exploring. Canon 2.6 of the NACM Model Codes states, “A court professional maintains the legally required confidentialities of the court, not disclosing confidential information to any unauthorized person, for any purpose.” Clarity about who is “unauthorized” is important in informing policies and procedures that guard confidential information.
The city was enthralled by a real-life drama. A local television station attempted to end its contract with Bill Sterling, one of its premier news anchors. Mr. Sterling was simultaneously going through a messy divorce with his socialite wife, Melinda. The more Mr. Sterling demanded from the station upon separation from employment, the more Mrs. Sterling demanded of him from their divorce settlement.
Judge Olivia Howard was a capable settlement judge, who had also served a term on the family court calendar. The attorneys for the television station asked Judge Howard to preside over a confidential settlement conference with Mr. Sterling, claiming it would only take an afternoon. Melinda’s attorney got wind of the conference and convinced Judge Howard to let Melinda attend. Twenty minutes into the conference, Judge Howard realized the three-way negotiation was just short of an open brawl. Feeling the presence of additional security may aggravate the situation, Judge Howard opted to have her bailiff, Braddon, present to quiet tensions among what would be multiple conferences.
By passively attending the conferences and being present for post-conference debriefs with the judge, Braddon was exposed to much information not known to the general public. He could not share details with anyone outside the courthouse, but he did think he could share some tidbits with his coworker Derrick, who worked on the same floor and was a bailiff with similar courtroom duties. Braddon assumed sharing information with Derrick did not break confidentiality. Derrick felt he was maintaining confidentiality by only telling his girlfriend what he learned from Braddon. Braddon and Derrick discussed information from the settlement conference over lunch at a sandwich shop three blocks from the courthouse. Neither one of them considered someone may overhear their sandwich shop conversations. In any case, intimate details of the settlement conference became widely known throughout the city.
Here to comment on this scenario are Timothy R. Tyler, chief deputy judicial administrator for Jefferson Parish Juvenile Court in Harvey, Louisiana; Cherie Lusk, court manager for the King County District Court in Issaquah, Washington; Eric Silverberg, retired court administrator for the Cochise County Superior Court in Bisbee, Arizona; and Pamela Gilchrest, 15th Circuit Court administrator in Coldwater, Michigan.
Was it reasonable for Braddon to assume that chatting with Derrick adhered to the confidentiality requirement?
Neither Pamela Gilchrest nor Eric Silverberg thought it reasonable for Braddon to share confidential information with Derrick. Pamela remarked, “Braddon should not have been speaking about anything he heard in this room to anyone. PERIOD.” Eric commented, “Co-workers and employees should have been trained about such matters. Braddon’s loyalty to the Code of Conduct and the judge should have prevented this lapse.”
Cherie Lusk and Tim Tyler said they thought Braddon could have reasonably believed he was following the court’s confidentiality requirements. Cherie said, “He may think because his co-worker is also prohibited from speaking to non-court people about court matters, the information is safe.”
Tim Tyler advised all court personnel should have signed a confidentiality agreement at the time of their hiring, which agreement should be renewed annually. “As we all know, keeping co-workers from discussing the latest high-profile case is highly unlikely, but if there is a confidentiality agreement on file for each employee, this should be sufficient to keep discussion of the matter within the court facility.”
Respondents brought up several additional issues beyond the initial confidentiality question.
Eric considered this an extremely troubling scenario, which has probably occurred. “In addition to what had been asked, there is the possibility a judicial conduct complaint could be filed against the judge. If there has been no settlement reached or the matter is still pending before the judge, the judge should hold a hearing about her potential conflict and offer to recuse.”
Eric underscored another issue. A bailiff, like a judicial assistant or law clerk, can be considered personal staff. “Often the Code of Judicial Conduct applies to these staff as well.”
Both Cherie and Tim brought up the issue of Braddon chatting with Derrick in a public place. Tim observed, “By speaking about this matter in a public setting, the general public could have easily overheard them revealing confidential information about a high-profile case.” Cherie agreed. “It was not reasonable to assume the information was safe when speaking at the sandwich shop or at any other public venue.”
Tim also mentioned the problem of Derrick sharing information with his girlfriend. “Although it is natural to want to discuss events of the day with your spouse or significant other, when Derrick shared information with his girlfriend, who was not bound by court confidentiality agreements, it can be deemed a breach of confidentiality. If an employee chooses to share confidential information with someone who is not bound by confidentiality, they are taking a large risk, which could result in disciplinary action up to and including termination.”
Do you think other employees might share Braddon’s assumption that sharing confidential information with co-workers was allowable?
All the respondents thought other court employees might share Braddon’s assumption about sharing confidential information with co-workers.
Cherie thought it was common for court employees to share their experiences and not consider whether the information falls under the confidentiality policy. “They spend most of their day together, and since they are not allowed to communicate court information outside of the courthouse, it’s a way to share interesting experiences or debrief, especially with material that’s emotionally taxing. I think many court employees trust each other and feel safe relaying information. I believe that sometimes employees cross into a pattern of gossip that can be toxic to the office, not realizing how much they are participating in that behavior.”
Tim said it is understandable for employees to discuss current cases and issues which might arise surrounding cases. It can be helpful to discuss some cases for security and procedural purposes. “Going outside of the building and having discussions, where the general public can overhear or divulging confidential information to an acquaintance or family member not bound by confidentiality, are the real issues.”
Pamela commented, “This is why I believe you should have a policy on how these types of things should be handled.”
Eric noted, “Sadly, I think some employees would think this is ok, not realizing harm could result to the judge and to the parties. I made a special point to train new employees about the Code of Conduct and to emphasize how these ethical codes are not always intuitively obvious. Each employee must lead by their ethical choices.”
Does your court’s training on confidentiality specify who is or is not authorized to receive confidential information?
Tim and Pamela said their courts’ confidentiality training did not include who was or was not authorized to receive confidential information. Tim remarked that during orientation, personnel are informed all juvenile court matters stay within the courthouse and are not to be shared with anyone outside. “All employees sign a confidentiality agreement. Anyone working in the courthouse who isn’t a court employee, even a temporary intern, must sign a confidentiality agreement. Anyone who breaches this confidentiality, even unintentionally or innocently, can be disciplined.”
Eric did not recall if this was documented in one place for training, although employees understood little information could be shared with others. “My staff understood much of what they learned was sensitive and should not be disclosed. As a general rule, you should only share information with a co-worker when there is also a legitimate business reason to do so, so as to not release confidential or redacted information, especially if it relates to prospective judicial rulings.”
Cherie’s court biannually conducts formal training on criminal records. It conducts other information training at onboarding and periodically thereafter. “They are also admonished about sharing information for purposes of gossip. I think it’s important for courts to schedule regular training on the issue because it’s easy for employees to become complacent.”
Has your court ever experienced a situation where someone in the court shared confidential information?
Cherie’s court experienced a breach of confidential information. “When that occurred, formal investigations were completed by the human resources department. The consequences varied due to investigative findings but have led to discipline on some occasions.”
Employees in Tim’s court are informed they are not allowed to access cases involving their own families or the families of friends and acquaintances. “Once an employee used their access to the court database to look up information on another employee’s family member’s case and shared that information with the employee. An investigation occurred and both employees were disciplined, with the one sharing information ultimately being terminated.”
Neither Eric nor Pamela recall such a breach in their courts.
What is the appropriate response for someone sharing confidential information with another court employee?
According to Eric, for information which has not gone viral, employees should at least be immediately counseled and receive additional training. In this scenario, information was widely disseminated. “The severity of discipline would depend on tenure with the court, how much training they have received, and whether they are a manager. Of course, if this is a personal employee of a judge, then it would be in their hands.”
Pamela believed these matters need to be handled on a case-by-case basis. “It would depend on if there is a policy in place and what the policy indicates should happen. If no policy is in place, I would say a written warning would be in order.”
If there is a possibility the court’s confidentiality policy has been violated, Cherie advised it is important to investigate the issue and get a full understanding of surrounding circumstances. “I would consider the situation a gray area if the employee reasonably could have misunderstood, or more clear-cut if it was a direct violation of the court’s confidentiality policy. Possible responses, based on the findings, could be additional training, coaching, and/or discipline.”
Tim referred to his court’s policy. “During the course of employment, employees have access to confidential information, such as information related to children and families served by the court. It is vital that all employees maintain the confidentiality of such information. Court files and records are not to be removed from the courthouse. In addition, employees must never divulge or improperly use confidential information in any manner or by any means, including the posting and disclosure of confidential information related to court business and/or to court personnel on the Internet. Without the express authorization of the chief judge, no employee may speak with any member of the press or media concerning any issue or case before the court. Such action, misuse, or unauthorized disclosure of confidential information will result in disciplinary action, up to and including dismissal. The obligation of confidentiality continues throughout and after an employee’s dismissal or voluntary leave of employment. Employees who violate confidentiality can be disciplined up to and including termination. If the matter occurred in certain cases, such as an adoption which is highly confidential, the violated party could have a civil cause of action against the court and against the employee who breached confidentiality.”
I deeply appreciate Pamela Gilchrest, Timothy Tyler, Cherie Lusk, and Eric Silverberg for their experiences and insights on confidentiality. This is a reoccurring issue, which raises both policy and ethical concerns. From a policy standpoint, it appears we all need to continue refining our definition of who is an unauthorized person when it comes to confidential information. This is always a good topic to revisit from time to time to ensure staff know how to properly deal with confidential information.
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ABOUT THE AUTHOR
Peter C. Kiefer has spent over four decades working for the courts in Oregon, California, and Arizona, as well as on rule-of-law projects in Liberia, Moldova, and Beirut.