Law Journal Article Outlines Path to Ombuds Privilege

A forthcoming paper by Diana Simon, a law professor at the University of Arizona, examines the legal issues surrounding Ombuds' confidentiality and privilege. Despite the pessimistic title, "The Ombudsman Privilege is a House of Cards," Simon lays out the arguments that could lead a federal court to find a privilege for an Organizational Ombuds. The article is currently available as an Arizona Legal Studies Discussion Paper and will be published later in the University of Texas School of Law Review of Litigation.

Here is the abstract:

A student or faculty member walks into the ombudsman’s office of a college or university with an issue. Between Covid-19, the Black Lives Matter movement, the toxic political environment, and the #Me Too Movement, there is plenty to talk about, and the visitor has been assured that the communications will remain confidential and privileged. So far, so good. But, as it turns out, the federal courts have held there is no ombudsman privilege, and therefore, the promise of privilege is illusory. What is an ombudsman to do? This article proposes a roadmap toward recognition of an ombudsman privilege. First, the purpose of an ombudsman is explained and how they are used in institutions of higher learning. Second, the websites of these colleges and universities are examined to see what they tell visitors. Third, the article addresses confidentiality vs. privilege—the twin principles. Fourth, the article addresses Supreme Court authority on recognition of a new privilege and how that case then was used to apply the privilege to an even broader group—unlicensed professionals working within an employee assistance plan—to show how these factors can be used to argue successfully for an ombudsman privilege. Finally, after addressing the caselaw on point on the ombudsman privilege specifically, another option of enforcing confidentiality through contract principles relying on a “browsewrap agreement” will be addressed. For an ombudsman to function effectively, these communications need to be kept secret, and if an ombudsman can educate and inform the courts, then the promise can go from illusory to real.

(SSRN via Arizona Legal Studies Publications.)

Related posts: Halliburton Asserts Ombuds Privilege; Effort to Pass Shield Law Comes Up Short in Texas; IOA Announces First Winner of Student Writing Competition; Law Review Article Lays Out Justification for Ombuds Privilege; Law Journal Article Updates Quest for Ombuds Privilege; University of Iowa Settles Case, Avoids Issue of Ombuds Privilege; University of Arizona Shuts Down Ombuds Program.