Vol. 5, No. 5, Pg. 19. Psst Wanna Know a Secret? VIEWPOINT: Reflections on the Unfortunate Lack of a Handbook to Confidentiality Agreements.

• Author: By Robert O. Meriwether

South Carolina Lawyer

1994.

Vol. 5, No. 5, Pg. 19.

Psst Wanna Know a Secret? VIEWPOINT: Reflections on the Unfortunate Lack of a Handbook to Confidentiality Agreements

19Psst Wanna Know a Secret? VIEWPOINT: Reflections on the Unfortunate Lack of a Handbook to Confidentiality AgreementsBy Robert O. MeriwetherYes, I know I used the word "confidentiality" rather than"secrecy" to describe the agreements that are the topic of this piece. Confidentiality is ultimately a defense lawyer's word, one that is latinate, polysyllabic and deliberately removed from the unfortunate connotations of "secrets."Secrets belong to the playground; they seem furtive, childlike, even petty. Like Prof Arthur Miller, "I am somewhat disturbed, ... to discover that the proponents of public access to court documents have started referring to protective orders, authorized by Rule 26(c) of the Federal Rules of Civil Procedure, by the rather pejorative misnomer of `secrecy orders.' " Arthur R. Miller, statement to the Subcommittee on Courts of the Senate Judiciary Committee, made on May 17, 1990, as excerpted in Privacy, Secrecy, and the Public Interest For The Defense, (Sept. 1990) at 7.

In fact, the very use of the word reveals the childish world of those who see this conflict merely in terms of secrecy. In the courtroom, in the real world, confidentiality and protection are the real issues. The inevitable tension arises between a right to privacy and what has been called "...the historic and genuinely democratic practice of keeping court proceedings open." Suzanne B. Conlon, Confidentiality, and the courts: preserving judicial discretion, 76 Judicature 304 (April-May 1993).

To be sure, the childish world of the playground is attractive for the simplicity of its rules, with construction paper booklets to remind us it is not nice to keep secrets from our schoolmates. Confidentiality conflicts lack any such concise handbook under which they would be easy to resolve, but then we hope we have outgrown our construction paper and scissors. The process of judicial and legislative wrangling that has resulted in our current barriers to absolute disclosure is admittedly complex, but our litigious world requires safeguards undreamed of by any simple manual. Anyone risking his or her assets, name, and the good will of colleagues by actually providing goods and services in...