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September 26, 2023

Legislative Action Taskforce Looks to Advance the Ombuds Profession

Marcus Stergio

As one of the largest professional organizations in the world, the American Bar Association (ABA) is highly regarded for its efforts to educate, advocate, promote ethical standards, and improve the legal system. What might not be understood among the general public, however, is that embedded within the association are groups such as the Section of Dispute Resolution (Section), operating behind the curtain to advance more than just the legal profession. Working with the Ombuds Committee as a current participant in the Section’s Fellowship Program, I have witnessed firsthand the impact that Section committees and subcommittees can have, and particularly through initiatives such as the Legislative Action Taskforce (Taskforce).

First organized in the fall of 2016 as the Legislative Subcommittee, an offshoot of the Section’s Ombuds Committee, the Taskforce is led by some of the industry’s most influential practitioners and advisors representing the corporate, government, and academic ombuds sectors. Members of the original Subcommittee were instrumental in the drafting of ABA Resolution 103 (2017), which “encourages greater use and development of ombuds programs that comply with generally recognized standards of practice as an effective means of preventing, managing, and resolving individual and systemic conflicts and disputes.” Fast forward a few years, the current Taskforce is working to create an Organizational Ombuds Practices and Procedures Act that will reinforce the Standards of Practice & Code of Ethics (Standards) set forth by the International Ombuds Association (IOA) while further establishing the duties, powers, and limitations of an organizational ombuds, and the bounds of confidentiality as it relates to ombuds communications. The goal is for states far and wide to adopt the Act, an accomplishment that could be a true game changer for the ombuds profession.

Consider that confidentiality is arguably the foundational principle of organizational ombuds work, yet questions have loomed for decades about how legally protected the concept actually is. To this day, the ombuds-visitor relationship does not confer the same type of protections provided by attorney-client privilege, which grants people the right to refuse to disclose and to prevent others from disclosing confidential communications made with their attorney. Recognized under federal common law and codified in some state statutes, attorney-client privilege is necessary to encourage people to make "full and frank" disclosures to their attorneys, who as a result are better able to provide candid advice and effective representation. Organizational ombuds are independent and do not represent or advocate for anyone, but we do rely on “full and frank” disclosures to sufficiently assist our visitors. Not to mention, in order to comfortably engage with us, visitors often need reassurance that we operate outside the normal chain of command, where confidentiality is a given.

Nonetheless, ombuds privilege has not been sufficiently recognized. In its place there are a number of federal district court decisions that, together, provide a blueprint for successfully arguing entitlement to an exemption from disclosing evidence. As a general rule, ombuds and their attorneys have had success when able to filter privilege arguments through the four Wigmore factors, demonstrating that a) communications are made in the belief that they will not be disclosed; b) confidentiality is essential to the relationship; c) the relationship is viewed by society as worthy of being fostered; and d) potential harm to the relationship is greater than the benefits gained by disclosure. While the sample size is small, the mere existence of this precedent is a good thing and might even be enough for experienced ombuds from well-established programs to feel content, particularly if their offices have rarely, if ever, been questioned from within or outside their organizations.

However, offices that are either in the process of or have recently launched new programs are perhaps more vulnerable. Legal counsel, human resources, and those in senior leadership positions who are still acclimating to the organizational ombuds role could be uneasy about private and sensitive conversations (at times revealing allegations of harassment, discrimination, retaliation, or other offenses that may pose legal risks) being welcomed by someone who is exempt from company reporting requirements. To compensate, some ombuds offices are created with a limited duty to report (and therefore do not fully operate to IOA Standards). Others see months of program development work stalled and their office doors never officially opened, or shut down not long after leadership fully grasps what ombuds confidentiality means in practice. For the future of our field, this needs to change.

Alongside these precarious situations, newer offices do have access to numerous resources provided by ombuds membership groups like IOA, the Coalition of Federal Ombudsman (COFO), and ABA. Earlier this year, IOA published An Overview of Ombuds Confidentiality to support new and emerging ombuds as well as organizations familiarizing themselves with the importance of both protecting ombuds confidentiality and allowing the office to operate in alignment with all four Standards. COFO houses one of the ombuds profession’s most successful mentoring programs, and its Executive Committee advocates for both new and longstanding offices when their ability to practice to Standards is challenged. Meanwhile, the ABA Ombuds Committee built and every year since has expanded the internationally recognized tradition of Ombuds Day. Designated as the second Thursday of every October, Ombuds Day spreads awareness and encourages wider use of all ombuds modalities, not just organizational, while offering panel discussions and workshops intended to be educational for practitioners as well as members of their organizations. In past years, over 30 states and the District of Columbia signed proclamations recognizing Ombuds Day, and the Committee is hard at work to surpass that achievement in advance of the sixth annual celebration this October.

In many ways, ombuds are fortunate to have endless continuing education, open dialogue, mentoring, advocacy, and professional development opportunities through these and other membership groups, but some might argue more is still needed. Pursuing the widest possible recognition of ombuds privilege is one potential avenue, but privilege can be difficult to accomplish in certain jurisdictions and might more realistically be a longer-term goal of the Section and ABA as a whole. For now, the Legislative Action Taskforce has its sights set on statutory confidentiality which would, among other things, clarify what constitutes confidential information and outline the appropriate ways for ombuds to securely manage it. Whether in the process of establishing new programs, addressing internal questions and concerns about confidentiality or, more generally, when tasked with overseeing the day-to-day operations of an organizational ombuds program, this type of guidance would supplement and reinforce some of the aforementioned resources already available to practitioners.

According to the Taskforce, the Organizational Ombuds Practices and Procedures Act is in the final stages of drafting and will eventually be distributed to state legislators for consideration. If the Act is adopted with consensus, we could be on the cusp of a uniform definition of ombuds confidentiality that exists today only in theory. As an ombuds who has experienced some of the challenges presented while introducing a new office to a federal agency, at the very least I am grateful for and hopeful about the potential impact the Taskforce’s efforts could have towards further advancing the ombuds profession.

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