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Should the promise of confidentiality be kept?
Promises of confidentiality are key to the conduct of society. Should they be kept?
Tuesday, January 20, 2009
by James M. Thunder

Promises of confidentiality pervade our society: doctors to patients, priests to penitents, accountants to clients, businesses to other businesses, employees to employers, and lawyers to clients. These concern medical information, sins of every type, business practices, trade secrets, crimes, and more. Whether you make the promise or receive the promise, do you believe they should be kept?

I was reminded of an October 2004 incident concerning such promises by two events: the contrast between the uneventful election of President Obama and the litigious election of President Bush in 2000, and the taking of oaths, that is, the swearing of promises, by President Obama and his Cabinet appointees. The incident was the publication of an article by David Margolick and two others in the October 2004 issue of Vanity Fair entitled “The Path to Florida.” The center of the piece was the U.S. Supreme Court case of Bush v. Gore four years earlier.

When that case was decided in late 2000, there were 35 men and women working as clerks for the nine justices of the Supreme Court. Every fall, each justice welcomes four law graduates for one-year terms as clerks to assist in researching and writing opinions. These men and women are regarded as among the brightest and most promising of recent graduates of our law schools and, when they leave their assignment, they are highly sought by government, by law faculty, and by the private sector and they are compensated accordingly. Typically, they have already worked for a federal appellate judge, so they know what is expected of them with respect to the confidentiality of their work. Moreover, before they assume their duties with the Supreme Court, they sign a confidentiality agreement and are subject to a Code of Conduct. As assistants to one of the justices, they serve the justice, the Court and the people of the United States.

A number of the 35 men and women broke their agreements by making disclosures to the Vanity Fair reporters. In response, 95 former clerks and other veteran attorneys wrote an open letter, reported in the September 27 issue of the weekly Legal Times,  castigating the violators. Since then, there has been an article in the Georgetown Journal of Legal Ethics (Summer 2005), [David Lane, “Bush v. Gore – Vanity Fair, and a Supreme Court Clerk’s Duty of Confidentiality”] -- a piece sympathetic to the clerks – but there has been no news since. This should not be the end of the story. Given the pervasiveness of confidentiality agreements in our society, when some of our nation's brightest new lawyers break their promises of confidentiality, the scandal is not an issue for the legal world alone.

It was reported in the Vanity Fair article that the one-time clerks justified the breach because something "illegitimate was done with the Court's power" in the Bush v. Gore litigation in 2000. Was this the first time that the Court was alleged to have acted so? Not at all. Indeed, the same issue of the Legal Times informed readers that a judge of the Fifth Circuit Court of Appeals had written an opinion repeating what has been said across the ideological spectrum for 35 years about Roe v. Wade, starting with the dissent in that case, namely, that that Court had exercised "raw judicial power."

What did the clerks say was illegitimate about Bush v. Gore? They did not allege that deals were made between justices, that there was an unlawful exchange of money, or that there was unlawful influence by one of the political parties. The clerks disclosed only that the justices were not disinterested observers in the affairs of our Nation. They were not gods, but men and women.

When we say "we are a government of laws, not of men," we do not mean that the law descends from above as if there were no men or women involved. Rather, we are a government of men and women whose decisions are subject to the ultimate democratic review, namely, removal from office or failure to win reelection. We are a government of men and women who hold offices of public trust who cannot act arbitrarily but must give reasons. As far as the judiciary is concerned, our judges do not read entrails. The men and women justices of the Supreme Court are required to give reasons and may not act arbitrarily.

The nine justices who participated in rendering the decision in Bush v. Gore, met their constitutional obligation by giving their reasons for and against the decision. We citizens have their final decision, their opinions, and these are open for the entire world to critique -- as had been done by October 2004 in a half dozen books and over 90 law review articles.

We citizens judge not their drafts, not their motives, not their in-chambers conversations, but their final written, published product. To exercise our constitutional duties, we citizens have no legitimate interest in ascertaining the nature of their deliberations before their final decision. The rule of law requires not disclosure of individual justices' motivations, but their articulated reasons. These one-time clerks invited us to join in their attack on individual justices, not in an attack on the justices' public opinions. We all must ever decline to do so. Rather than promoting the rule of law, the clerks undermined it.

These one-time clerks had lawful options. If something terrible was wrong, if they suspected a crime or an impeachable offense or a violation of judicial canons of ethics, they could have sought legal advice about how to approach a prosecutor or a congressional committee or a disciplinary body. Moreover, they were free to join in criticism of the Court's decision and opinions.

Our Founders decided against issuing the Declaration of Independence anonymously. They signed their names. Likewise, our judges are not hidden bureaucrats; they affix their names to their opinions. These clerks, these moral midgets, breached the confidentiality they voluntarily assumed and did so anonymously. The clerks breached their promises because they believed some justices had failed to adhere to norms of behavior – norms set by . . . the clerks. We should all fear lawyers like these one-time clerks who believed that they were above their promises, above the law, above their justices. Their breach served neither the Court, the legal profession, nor this Republic.

These men and women have not only lost their own honor, they have stolen the honor of their colleagues. For, what client would want to retain any member of the class of 35 without ascertaining if he or she had been one of those who had disclosed confidences? What client, even one who objected to the decision of Bush v. Gore, would want as an attorney a man or woman who thought they free to disclose confidences?

Moreover, prospective clients should fear the leverage that the Vanity Fair journalists can exert over all 35. The journalists could threaten the violators with disclosure of their identities. The journalists could also threaten the remainder by threatening to identify them as violators and it would be the word of the journalists against them.

Those who broke their promises should spare themselves and their fellow clerks a lifetime of questions about their fitness as lawyers by identifying themselves and defending themselves -- if they can.

James M. Thunder is an attorney in practice in Washington DC.

Sources: http://makethemaccountable.com/articles/The_Path_To_Florida.htm




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