“Three may keep a secret,” wrote Benjamin Franklin, “if two of them are dead.” While attorney-client privilege confers a lot of power on lawyers and their agents to keep a secret, the privilege is never absolute. It can be waived by the client anytime, and can be breached in all sorts of ways.
That’s why it’s unwise to promise an interview subject that what he tells us will forever remain confidential, no matter what.
As investigators, we are sometimes asked by people we interview whether what they tell us can be kept “secret,” “just between us,” “confidential” or “off-the-record.” Those terms and other similar ones may have specific legal meanings under the rules of evidence, but can also mean different things to different people.
Good reporters always go over the ground rules of an interview if a subject seeks to put a limitation on what may be reported or disclosed to third parties.
Good investigators ought to do the same if asked. We’ve written before about the importance of using templates – a script of how an investigator will represent himself and the degree to which he will identify his client, in Trial Ethics: A Template Can Save Your Life.
In every one of our templates is a response to the question from the person we are seeking to interview, (if asked): “Can my comments remain confidential?”
Our answer tends to be something like, “Our firm has to share anything I hear from you with our client, but we won’t tell anyone else that you’ve told us anything unless a court orders us to do that.” This makes the investigator’s promise truthful, but doesn’t promise that what the person making the comments says will forever stay between that person and the investigator.
If we are hired by an attorney, then we will assert that anything we report to that attorney is protected by attorney-client privilege. As agents of the attorney, for the purposes of privilege it’s as if the attorney is doing the interviews we do.
But what happens if word gets out that we have done an interview, and the other side in litigation seeks a court order demanding that we hand over our notes or divulge the contents of our conversation? Our letter of engagement with attorneys promises that
we will promptly notify you [our client] and follow your direction with respect to any third-party effort, by subpoena or otherwise, to gain access to any document or information pertaining to this matter, including any effort to obtain testimony from us.
In other words, we’ll get our clients the information we learn in an interview, because our first duty is to our clients. And, we’ll fight as hard as our client would to preserve that secret. Beyond that, what happens to the information we report can be taken out of our control.
What works best for everyone concerned is that everything we promise is written down in an interview template and a letter of engagement. It helps our clients sleep better, and when they are happier, so are we.