On Ethics: To Out or Not to Out Clients I

In response to my last essay, Editing for a Client’s Direct Competitor, a colleague asked about my thoughts regarding identifying a client to other colleagues or to the world at large. I have always considered information about my clients to be confidential, but I never gave much thought to the extent of that confidentiality or to its basis.

In the beginning…

As with the above essay, it must be noted that editors do not have a universal code of responsibility and conduct to which we are subject. Instead, we have to govern our actions by common sense and by comparing them to an existing code that governs other professionals. However, regardless of the positions other codes may take, in the end our decision needs to be based on our individual concepts of right and wrong. That this should not be the case if we want to be perceived as professionals of the same level as, for example, doctors and lawyers does not matter; until editors are subject to a licensing system — whether it be local, regional, national, or universal — each editor must be judge, jury, and executioner of right and wrong in editing.

The blanket statement that client identities are confidential and not disclosable is wrong because it is too broad, too all-encompassing. The purpose of confidentiality in the doctor–patient, priest–penitent, and attorney–client scenarios is to encourage the patient/penitent/client to disclose information to the doctor/priest/attorney that the client would otherwise be reluctant to disclose for fear that everyone would learn the information and it would be held against the client. Imagine telling your attorney that you had committed a murder using a handgun but not a knife. This might be very important information for your attorney to know, especially if the person you are accused of murdering was knifed rather than shot. Would you confess to your attorney that you had committed an uncharged murder if you thought your attorney would need to tell the prosecutor?

In my 32 years of editing, I have never been in a position where disclosing the identity of my client, in and of itself, could be harmful to the client. If my client is Simon & Schuster, Simon & Schuster is also the client of hundreds of others. The name itself does not warrant a level of protection similar to the privilege afforded to doctor–patient, priest–penitent, and attorney–client relationships. Consequently, a blanket prohibition on disclosure is excessive.

So the first general rule is that it is not improper ethically to disclose the name of a client. But what if there is an expectation of nondisclosure?

Narrowing the rule

The general rule that it is not improper ethically to disclose the name of a client begins to break down when we separate our clients into categories of individuals and corporations (“corporations” is being used broadly to cover all business entities, including an individual who holds herself out to be a business). John James, indie author, has a different expectation of privacy than does Betsy Kong, Professional Editor, or Kong Editorial Services, or Simon & Schuster, Publishers.

An important point to note is that an expectation of privacy/confidentiality is not the same as a right of privacy/confidentiality. An expectation can become a right if there is a written agreement expressing that disclosure is forbidden, but in the absence of a written agreement that expressly says the client’s name is not to be disclosed to anyone, an expectation remains a hope, not a requirement.

Again, however, I think the requirement of nondisclosure rises higher on the required scale when the client is an individual person — the indie author — who is not presenting himself as a business and is not engaging with you in a business-to-business manner.

So my general rule changes according to the client; my revised rule is this:

Ethically it is not improper to disclose the name of a client except when the client is a nonbusiness individual who would reasonably expect confidentiality. In this instance, I would weigh the benefit to the client against the detriment of disclosure.

It’s the injury to the client…

When balancing the scales, it is always the benefit and detriment to the client — not to us editors — that is weighed. Perhaps telling our colleagues that John James is a deadbeat client will prevent a colleague from experiencing the same problem that I had should James try to hire him or her. But when I tell my colleagues that James is a deadbeat, what am I really saying? I am saying that I had a problem with James and I will relate the problem — for example, James refused to pay his invoice because he disputes its accuracy — but what I relate is solely from my perspective; James is not given a chance in the same forum to explain the problem from his perspective.

In this instance, James is likely to have expected that I would keep his name confidential. Few people want it known that they do not pay their bills. The detriment to James by my disclosing his name is far greater than the benefit to me. It may be of benefit to colleagues, but isn’t the benefit really only to the editor that James might subsequently approach? And that editor only gains a benefit if that editor happens to be a member of the forum where James’ name was disclosed.

Contrast this with disclosing a business’ name. Although the same arguments could be made, the detriment to the business is not, to my way of thinking, the same as to the individual. If Simon & Schuster doesn’t pay my invoice in a timely manner and I complain about it, hundreds of others can rise to the company’s defense because hundreds of others also work for the company. The detriment is not the same, if there is a detriment at all.

One more thing

Editors often want to boast that they are working for certain large, repeat-business clients. Many editors list them on their websites. It is not often that editors want to publicly complain about working for such a client. We know (or should know) that if we complain about Simon & Schuster, the publisher will rethink its approval of us and we could be removed from the approved list. In addition, other major, repeat-business clients are likely to take notice. Thus, when we disclose the name of a business client, we do so less to complain and more to associate ourselves with that client.

This is just the opposite of the usual individual indie-author client about whom we want to complain, and we are not overly concerned about possible repercussions with other clients. Our motivation is different, and the purpose of disclosure is different because of the client’s status.

So the rule is…

My rule is that I never disclose the name of a client who is an individual person to a general list, regardless of whether it is an open- or closed-access list. I may, if asked privately by a colleague, disclose an individual’s name to that one colleague, but I never broadcast an individual’s name. To my thinking, the detriment to the individual has the potential to far outweigh any benefit to me, so the scales of privacy/confidentiality skew in the individual’s favor.

I will disclose the name of a business if I think it necessary to do so. I must admit, however, that even in the case of a business, I am reluctant to do so because usually the problem with the business is with a single person, not the whole business. Again using Simon & Schuster as an example, I do not actually work with Simon & Schuster; I work with a project manager at the company. In fact, I am likely to work with several project managers at the company. Experience teaches that some are great to work with, some are good to work with, and some are a struggle to work with. And if payment of an invoice is late, it is likely that the problem lies with the project manager, not with the company.

On the other hand, some companies have changed policies, and the new policy adversely affects working with them in a more general sense. For example, the company may have changed its payment terms unilaterally, now paying freelancer invoices in 90 days rather than 30 days. In this type of instance, disclosure of the company name is both necessary and ethically okay when you are discussing payment terms and unilateral changes to a working relationship.

Broadly speaking, I think it wrong to disclose the name of an individual and okay to disclose the name of a business. But there is more to the issue than we have discussed here, and so the discussion will continue in Part II, starting from this general rule:

Ethically it is not improper to disclose the name of a client except when the client is a nonbusiness individual who would reasonably expect confidentiality.

What do you think?

Richard Adin, An American Editor