Jewish World Review August 20, 2001 / 1 Elul, 5761

Clarence Page

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Consumer Reports

Shaking up the rules on keeping secrets -- CONFIDENTIALITY isn't what it used to be.

The Rev. Joseph Towle, a Jesuit priest in the Bronx, N.Y., showed how much has changed earlier this summer when he asked that two men be freed after serving time for murder since 1989, when they were teen-agers.

Father Towle knew they were innocent, he said, because another youth, Jesus Fornes, confessed the crime to him a few days before the two young men were convicted.

Fornes died in 1997 and, after keeping the secret a dozen years, Towle came forward in mid-July to ask that the men be freed.

The Archdiocese of New York cleared the disclosure beforehand and, according to Towle, Fornes' statement was not part of a formal religious confession. Still, many were shocked that a Catholic priest would violate his calling by betraying a penitent, even after death.

Even so, Towle's case is one of several major cases that have erupted this summer that have shaken up centuries-old notions about how firmly confidentiality should be protected in certain professions. Priests and lawyers have been loosening their old rules while journalists are trying to hold onto whatever protections we have left.

In the past, lawyers held that attorney-client privilege is essential for them to provide their clients with the best representation. But the American Bar Association's governing House of Delegates eased that firm position a bit earlier this month. Meeting in Chicago, they voted to relax the profession's strict code of client confidentiality when it can prevent "reasonably certain death or substantial bodily harm." Previous rules allowed lawyers to speak out only when a client was imminently going to commit a crime.

The body later considered allowing such disclosures when the harm was only financial, too, but voted that down. Opponents already thought the new reform was too broad. Loosening the rules might even encourage publicity-seeking lawyers to compromise their clients' best interests.

Besides, attorney-client privilege also protects attorneys. It's hard to fault lawyers for withholding important information when their professional rules say they have to.

Nevertheless, civic responsibility won the day for leaders of a profession whose civic image has taken as much of a beating as a trailer park in a hurricane.

That same day, a similar sense of civic responsibility appeared to grip Boston's Catholic archdiocese. It reversed its opposition to a bill in the state legislature that would add priests and other clergy to a list of professionals, including teachers and social workers, who are legally required to report suspected child abuse.

The archdiocese's public policy arm, the Massachusetts Catholic Conference, did not give a reason for its reversal. But it came while some of the 77 alleged victims of former priest John Geoghan, who is accused of molesting children during a 27-year career in the church, are suing Boston's Cardinal Bernard Law. The cardinal reportedly transferred Geoghan from parish to parish, despite warnings about his suspected abuse.

Cases like these wear away at the public's tolerance and for good reason. Anyone who receives confidential information that, if disclosed, would prevent further harm to others should also know that they, on some ethical level, become an accessory. When your silence aids wrongdoing, you must ask yourself whether this is a secret you really want to keep.

But confidentiality is a friend more often than it is our enemy. As an old legal saying goes, hard cases make bad law. Most cases are not that hard.

Take, for example, the case of freelance journalist Vanessa Leggett. While lawyers met in Chicago, Leggett was sitting in a Texas prison, where's she's been confined since July 20 for refusing to turn over her confidential notes in an unsolved Houston high-society murder. With no "shield law," as some states have to protect journalists, she faced as much as 18 months in jail.

Yet it was not at all clear that Leggett's notes contained crucial evidence or that investigators had exhausted other, less drastic means to get whatever information she might have. Prosecutors appeared to be on a fishing expedition against a writer who did not have the big budget of a major news organization to back her up.

Confidentiality serves the public good far more often than it threatens us. The need to keep secrets is essential in certain professions, including journalism. Sinners need to feel free to unburden themselves to their priests. Defendants need to be frank with their lawyers so even the guilty can have a fair trial based on evidence, not self-incrimination. Journalists need to be able to protect their sources so the public can receive important information that they might not receive any other way.

When failure to disclose poses an obvious hazard to others, a good argument can be made for disclosure. Otherwise, it is best that the secrets be kept.

Comment on JWR contributor Clarence Page's column by clicking here.


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