Secrecy is a great assistant to corruption, incompetence, moral turpitude and greed. Nowhere have we seen this more in evidence than in the current crop of scandals, from Enron's and WorldCom's bogus financial statements to the Catholic Church's decades-long coverup of child-molesting priests.
In a bold and important step to counteract the problems secrecy engenders, the entire federal judiciary in South Carolina has said it will no longer be a party to confidential settlements. The 10 active federal judges in South Carolina voted unanimously to refuse to approve future secrecy provisions. If the parties want the court's imprimatur on their settlement, they will have to make the terms public and the litigants must be free to talk about the case. The judges' action, which won't be final until a vote is taken following a public comment period, is a refreshing call for greater truth in lawyering. We hope it will spark a national trend.
The public interest is clearly served by an open process identifying which products are defective, which doctors are mistake-prone or incompetent and which companies maintain an unsafe working environment. However, too often the public interest is ignored. Defendants -- doctors, businesses, large institutions -- usually insist on secrecy as a condition of settling. They don't want their wrongdoing publicly known. It may drive away future patients, customers, employees or parishioners. Or it might give strategic information to others who may have been similarly harmed. The plaintiffs and their counsel often agree to the gag orders as a way to avoid costly litigation they might lose. And until now, the courts have gone along as willing co-conspirators in keeping the public in the dark.
By proposing a halt to this practice, South Carolina's federal judges have performed a public service. We would like to see state courts follow suit. It is there, after all, that most medical malpractice, product liability and personal injury cases are litigated.
Florida has already taken some steps in this direction. A law passed in 1990 bars state courts from shielding a business' proprietary information in the course of litigation if it has the effect of concealing a public hazard. For example, if a car company wants to keep its engineering specifications confidential, it can't be doing so to hide a defect. Also any secrecy clauses in settlements between private parties that put the public safety at risk are unenforceable. Unfortunately, despite the law, secrecy clauses are still routine. A blanket rule barring secrecy in all settlements but family matters would have more teeth.
On another promising front, rumblings in the legal ethics community suggest that attorneys who participate in secret settlement agreements could be obstructing justice and violating their professional tenets.
We have seen the way predatory priests used secrecy to continue to prey on young victims at every new parish to which they were assigned. In cases such as the defective Firestone tires, we know people have been injured because products have been kept on the market after a settlement was sealed. There is no excuse for such unaccountability. When litigants come to court, they are asking the public to arbitrate a dispute and using public resources to do so. We all should be able to see the result.
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