On May 5, 2006, Fainaru-Wada and Williams were subpoenaed to testify before a federal grand jury about how they obtained leaked grand jury testimony. The authors urged United States District Judge Martin Jenkins to excuse them from testifying, but their appeal was denied and they were sentenced to 18 months in prison for contempt of court. During the entire proceedings, Fainaru-Wada and Williams repeatedly stated that they would go to prison before revealing their sources. However, the two avoided jail time when federal investigators identified attorney Troy Ellerman as the individual responsible for the leaked information.
Journalists are not the only ones who deal in privileged information. Lawyers, doctors, mental health professionals, accountants, clergyman are all privy to client secrets. Sometimes those secrets are embarrassing or even incriminating. Everyone understands that no client wants his file released to anyone. Currently, strict privacy laws carrying stiff penalties are on the books which prohibit the release of confidential information to a third party without the client’s consent.
In addition, courts of law generally recognize the right of ‘privilege’ with regard to information provided to lawyers, physicians, etc…. Claiming privilege is usually a right on the part of a party to a case, allowing him to prevent evidence and testimony from being introduced by the person to whom the privilege runs. For example, a person can generally prevent his attorney from testifying about the legal relationship between attorney and client, even if the attorney were willing to do so. In a few instances, such as the marital privilege, the privilege is a right held by the potential witness. Thus, if a wife wishes to testify against her husband, she may do so even if he opposes this testimony; however, the wife has the privilege of refusing to testify even if the husband wishes her to do so.
Sometimes, however, a court will deny a claim of privilege as in the case of the two reporters, Fainaru-Wada and Williams. Legislation can also restrict the right to privilege. For instance, in many states, physicians are legally allowed to inform the motor vehicle bureau about patients with medical conditions such as sleep apnea, epilepsy, or critically impaired vision since those conditions make the patient a hazard if he were allowed to drive. Some states even require physicians to report the information. Another kind of privilege, clergy-penitent privilege, has not been sharply defined by the courts and therefore is often denied. Federal courts usually deny accountant-client privileges in criminal cases.
What is the Torah’s position on these matters? Is there a concept of client confidentiality according to Halachah? Can Beis Din force someone to reveal information about his client or patient? Let us begin the discussion at what might seem to be an unlikely place, the first pasuk in Parshas Vayikra.
The pasuk states, “And He called to Moshe, and Hashem spoke to him from the Meeting Tent to say.” Regarding the words ‘to say‘ the Talmud (Yoma 4b) quotes the words of Rabbah: From where is it derived that when someone says something to his friend, he (that friend) is under a prohibition to say [to someone else what he was told] until the person [permits him and] says ‘Go and say’? We know it from the words ‘to say.’ Rabbah understands that since Hashem‘s words to Moshe were said in private, Moshe was not allowed to relate them to anyone without Hashem‘s explicit permission. He received that permission when Hashem said the words ‘to say.’
There is an important point to be made about Rabbah’s statement. The purpose here is not to teach us that it is forbidden to reveal information that would in any way cause monetary damage, or that can be construed as being negative or unflattering to any of the parties involved. That we would have already known from the laws proscribing evil speech and tale bearing (hilchos lashon harah v’richilus). Rather, Rabbah is telling us that any private conversation must not be repeated to others without first obtaining consent, no matter how innocent the conversation may seem to be (see Sefer Chafetz Chayim, hilchos lashon harah, klal 9).
Of course, to correctly apply this high standard of confidentiality to a specific situation any countervailing priorities that may exist must be added to the halachic equation. As always, when in doubt a competent halachic authority should be consulted. Be that as it may, the fact remains that from Rabbah‘s teaching we can conclude that maintaining a very strict level of secrecy regarding a client’s information and conversation is certainly a Torah ethic.
Does this ethic override a call from Beis Din to divulge privileged information regarding one’s client? The answer is an emphatic no. Numerous authorities make the point that even if one explicitly promises to someone not to reveal his secret information, that promise does not relieve him from the obligation to testify in Beis Din if called upon to do so. Even more, a person’s duty to fully disclose whatever information he has to the Beis Din exists even if the person swears in Hashem‘s Name not to testify (see Choshen Mishpat 28:1, Pischei T’shuva s.k. 3, and Shu”t Tzitz Eliezer, 13:81).
The reasoning behind this ruling comes from this week’s Parsha. In Vayikra 5:1, the pasuk states, “And when a person sins: and he heard [someone’s] voice who pronounced a curse [on anyone who knew information about his case but would not testify] and he was a witness – either he had seen or he had known [something about the case] – if he does not tell [what he knows], he will bear his iniquity.” The Rambam in his Sefer HaMitzvohs understands this pasuk to be placing a positive commandment upon a witness to testify (positive commandment #178). However strong the Torah ethic of client confidentiality, it pales in comparison to a full-fledged positive commandment. There is a halachic principle that a person who makes an oath (shvuah) in contradiction to the mandate of a positive commandment is not bound by the oath. Rather, the Torah’s directive is preeminent. Thus, even making a shvuah of client confidentiality will not exempt one from the obligation to testify.
It would seem from our discussion so far that the client of a Torah-observant Jew should be rather wary about the fact that the Torah does not seem to recognize the legal concept of ‘privilege.’ There is a likelihood that if a client will become involved in a law suit in Beis Din, his Jewish lawyer, accountant, or doctor will be obligated to testify if called to the stand. There is, however, one more halachic angle regarding this subject which significantly effects what actually will happen in such a situation.
In his work Avkas Rochal, siman 195, Rav Yosef Cairo, the author of the Shulchan Aruch, explains that the mitzvah to heed the call of Beis Din to testify is essentially an obligation to act with kindness to one’s fellow man (gemilus chesed). It is simply doing a good deed for the person on whose behalf the testimony is being given. In this way it is similar to such commandments as returning lost objects, visiting the sick, and giving charity. According to the Avkas Rochal‘s view, the mitzvah to testify at its core is not seen in halachah as an inviolate obligation upon a witness to see to it that ‘justice is served.’
Mitzvohs of gemilus chesed are different than other mitzvohs in that they do not need to be performed if a significant financial or personal loss will be incurred. For instance, one does not need to return a lost object that is relatively inexpensive if it will mean taking time off from work since one will not likely be able to recoup the lost wages. Based on this principle, the Avkas Rochal rules that Beis Din cannot force a person to testify if doing so will cause significant financial or personal harm to him.
Often, when client confidentiality is found to be violated, both the courts and the pertinent professional associations impose stiff penalties. Since that is the case, according to the Avkas Rochal‘s opinion, a professional is not usually obligated by the Torah to violate client confidentiality by giving testimony in Beis Din (though he certainly may, if he so chooses), because that would leave him open to being sued in the secular courts or being reprimanded by the professional association to which he belongs. The Beis Din would first have to bring the case to the secular court system and petition the court to subpoena the testimony, thereby insuring that the non-Jewish courts will not consider the witness to have breached client confidentiality.
This discussion of the Avkas Rochal‘s opinion would not be complete without mentioning that it would seem that his ruling may hold true only according the majority of earlier authorities, but not according to all opinions. Specifically, the Avkas Rochal bases his ruling on the words of the Ramban and other early authorities who quote the Ramban‘s opinion. However, the Ria”z and Rabbeinu Yerucham (brought in the Shiltei Geborim on Bava Kama, 24a in the pages of the Ri”f) rule differently than the Ramban. Importantly, the T’shuvos Ma’asas Moshe (Ch.M. end of siman 63), quoted in the glosses of Rabbi Akiva Eiger on Choshen Mishpat, (siman 28, Shach s.k. 2) rules that their view does constitute a valid minority opinion.
There is one final note regarding this subject. With all this talk of not being obligated to testify in Beis Din, let us not lose sight of the fact that coming to Beis Din and relating the truth to the dayanim is a great mitzvah of gemilus chesed. It is a mitzvah that cannot be refused unless there is a solid reason to think that a significant loss will occur. In principle, a Beis Din could proclaim a cherem (a kind of excommunication) on someone who refuses to release documents requested by the Beis Din without a halachically valid reason (see Choshen Mishpat 16:3 and 28:2). Furthermore, the Talmud in Bava Kama 56a states that if a witness had an obligation to testify in Beis Din on behalf of one of the litigants and did not, and consequently the judges passed down an incorrect ruling, in Heaven the witness is seen as owing the amount of money in question to the litigant that unjustly lost the case. No one wants to arrive to Heaven and find out that he has a bill which he didn’t know about and did not pay.
We all realize that we are much more objective when we are discussing someone else’s losses rather than our own. It is very hard for a person to decide for himself what is considered to be a significant loss. Furthermore, every case has to be decided on its own because no two cases are exactly alike (that’s often the way it is in Choshen Mishpat). So let’s conclude this discussion with some good advice. If you find yourself being called to Beis Din to testify, consult with a Choshen Mishpat professional. It would be the prudent thing to do.
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