By: Rabbi Tzvi Price
In 2004, Lance Williams and Mark Fainaru-Wada co-authored a book entitled Game of Shadows while they were reporters for the San Francisco Chronicle. The book documented the widespread use of performance-enhancing steroids among high-profile athletes and it dropped a bombshell on the sports industry. The book’s two authors received numerous journalism awards for their investigative work.
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.’