Ten Things Lawyers Should Know About Ombuds, #3: Ombuds Assert Their Communications are Privileged — EngagingConflicts.com
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This is one of Guest Blogger Ombuds Thomas Kosakowski’s posts in his series “10 Things Lawyers Should Know About Ombuds”, part of the Engaging Conflict’s Taking Peacemaking Public series. His Introduction and point #1 are posted here and point #2 here.
3. Ombuds Assert Their Communications are Privileged
Ombuds routinely advise that nothing revealed by the visitor, including the visitor’s identity, will be disclosed voluntarily to anyone outside the office without the visitor’s consent. (The only exception to this guarantee of confidentiality is if there is a threat of imminent harm, aka the Tarasoff exception.) Ombuds further assert that communications with visitors are privileged and that it is the ombuds who holds the privilege.
Although not fully tested in published cases, ombuds position themselves to argue for a common law privilege under the Federal Rule of Evidence 501 using Dean Wigmore’s four factors:
(1) The communications are made with the confidence that they will not be disclosed;
(2) The element of confidentiality is essential to the full and satisfactory maintenance of the relation between the visitor and ombuds;
(3) The relation with the ombuds, as an alternative dispute resolution service, is one that society considers worthy of fostering; and
(4) The injury caused by the disclosure of the communications is greater than the benefit gained in the correct disposal of litigation. (See Kientzy v. McDonnell Douglas Corp., 133 F.R.D. 570, 572 (E.D. Mo. 1991).)
A California appellate court also found a qualified ombuds privilege derived from the right of privacy under the California Constitution, based on the visitor’s expectation of confidentiality. (Garstang v. Superior Court, 39 Cal.App.4th 526 (1995).) In addition, ombuds may assert that their communications are privileged as pre-mediation communication, if such protection is afforded by state statute.
For these reasons, ombuds work to create an expectation of confidentiality with visitors and potential visitors. Attorneys should therefore anticipate ombuds will seek understanding and protection.
Tom’s series will continue Thursday.
