01202017Headline:

Boston, Massachusetts

HomeMassachusettsBoston

Email Brad Henry
Brad Henry
Brad Henry
Attorney • (617) 523-8300

The Scourge of Confidentiality

5 comments

Secret ImageJustice is a public affair. A pillar of the American judicial system, both civil and criminal, is that our courts are public institutions whose doors, at least in theory, are open to all for the airing and resolution of grievances. If a dispute is brought through those courthouse doors – a right fought for and enshrined in our founding documents – the presumption is that it will be resolved there, or under its oversight, for the world to see. Just as seeing is believing, justice must be seen to be done.

Confidentiality in settlement agreements dilutes those hard-earned rights. In fact, confidentiality makes us, as citizens and as a society, less safe. See, e.g., www.usatoday.com/story/opinion/2014/06/23/secret-legal-settlements-sealed-gm-editorials-debates/11287405. When a victim of another’s negligence or other wrongful conduct submits – often understandably – to pressures to keep any and all details of a case settlement secret, then the incentive for the wrongdoer to mend their ways is diminished. The myriad child sexual abuse cases against large societal institutions is but one of a thousand examples where secrecy and institutional cover-up led directly to others suffering harm. The same is true of the secret settlements imposed by GM and other auto manufacturers. For each of those first, often forced, secret automotive product settlements, there is a fellow citizen who has suffered or died unnecessarily for that secrecy. For every agreement to keep from the public the reasons an enormously wealthy corporate defendant or its insurer agreed to pay a significant settlement, there are dozens, perhaps hundreds or thousands, who suffer the same harm never knowing the company they share. It is wrong. It is unpatriotic. It is un-American.

Yes, we also believe in our rights to contract. Yes, we certainly believe in our Freedoms of Speech, including the freedom to refrain from speaking. Yes, we agree that those rights are not set utterly aside merely because one walks through the heavy doors of our courts. Still, whatever popular media depicts, most plaintiffs and their attorneys make serious attempts to resolve such disputes before taking those first, often expensive, steps through those heavy doors. Once forced to resort to our public forums of justice to resolve a dispute, the “right” to “contract” for “silence” must be reconsidered in light of the society and citizens to whom that courthouse and its powers of resolution belong.

Every time a settlement draws close, please think twice about whether silence is worth the price someone else may pay for it. That silence does not come without a price. And, it’s not cheap.


 

1. See e.g., Declaration of Independence, Grievances Against the King (“For depriving us in many cases, of the benefits of Trial by Jury”); U.S. Constitution, amend. VI (“the accused shall enjoy the right to a speedy and public trial”), amend. VII (“the right of trial by jury shall be preserved”).

5 Comments

Have an opinion about this post? Please consider leaving a comment or subscribing to the feed to have future articles delivered to your feed reader.

  1. EmmaP says:
    up arrow

    Eloquently put sir.

  2. up arrow

    […] The Scourge of Confidentiality Still, whatever popular media depicts, most plaintiffs and their attorneys make serious attempts to resolve such disputes before taking those first, often expensive, steps through those heavy doors. Once forced to resort to our public forums of justice … Read more on Legal Examiner […]

  3. Doug T says:
    up arrow

    My grandfather, a professor of building materials, often expressed regret at the lack of information available for his study as a result of confidential settlements. He often cited a high-profile building failure here in Boston from many years ago. Those concerns are not new, but with increasing accessibility of courthouse records, I suspect a next-best could be assembled in many matters of public interest through sustained mining and analysis of electronic data contained in public records. There typically are clear indicia of the fact of settlement in public records, even if devoid of much useful detail. Those records increasingly are accessible by electronic means. As for the wider concerns expressed in your thoughful article, I expect my own grandchildren, many years from now, will be reading articles raising similar concerns.

  4. Bill Crowley says:
    up arrow

    It too often comes down to corporate or institutional reluctance to accept responsibility. “If we keep the details of this harm we caused secret, there’s less chance of us having to be held accountable to someone who was similarly harmed.” Its shameful.

  5. up arrow

    […] The Scourge of Confidentiality Still, whatever popular media depicts, most plaintiffs and their attorneys make serious attempts to resolve such disputes before taking those first, often expensive, steps through those heavy doors. Once forced to resort to our public forums of justice … Read more on Legal Examiner […]