On Ethics: To Out or Not to Out Clients II

Part I ended with 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.

and the statement that there is more to the issue of disclosure. One of the big questions is whether it makes a difference if the forum for disclosure is a private one (i.e., one not accessible by the general public) or a public one (i.e., one accessible by everyone).

In the world of Google, does it matter?

One problem with the private-versus-public dichotomy is that too often there really isn’t a dichotomy. Much too often “private” forums are indexed by Google and other search engines, and so what is thought to be private really isn’t — the information appears in a search result.

Even “private” Facebook chats aren’t very private, especially as Facebook keeps altering its terms of service in an attempt to defeat any privacy preferences.

Does the nature of the forum really change the ethics?

To my thinking, it does not matter whether the forum is private or public. Aren’t the real issues the client’s opportunity to respond, the client’s expectation of privacy, and whether the client is an individual or a business? Do either change based on your decision to reveal the client in a public forum rather than a private forum?

An argument could be made that disclosure in a public forum does give the client an opportunity to respond, but with the hundreds of thousands of forums in existence on the Internet alone, it is a false argument. And certainly it is a false argument if you go to a public editors’ group meeting and discuss the client when the client lives in Paris, France, and the meeting is a Thursday luncheon in Horsehead Falls, NY.

No matter how you construe the arguments, the type of forum — public or private — has no effect on the ethics of naming individual clients without permission. Again, naming a business is different because the purpose of a business is to make itself known, whereas individuals have an expectation of confidentiality.

What makes an individual a business?

Let’s begin with this truism: If the individual is incorporated (e.g., Jones LLC), uses a business name (e.g., Jones Enterprises), or otherwise holds himself out as a business, then the individual is a business. If the individual asks that you invoice in a company name, then the individual is a business. But if the individual does everything in his own name and clearly is not earning their living as an author (e.g., is a stock broker or marketer), then the individual is an individual. The point is less that these specific things make an individual a business but how the client presents himself.

A cautionary word: If the client has a business, that fact does not make the client a business within your relationship. The question is the client’s presentation to you within the confines of your relationship, not the within client’s general life.

Does what you want to disclose make a difference?

A lot of editors will include in their résumés or on their websites a list of books that they have edited. I do. The practice is okay if the client is the publisher rather than the individual author, unless you have permission from the individual author or the book has been published. Once the book has been published, I do not think the author can expect his book not to be listed as a book that you have edited. The book is now public.

Listing books you have edited for an individual author is more a matter of when than whether. The individual author’s expectations of privacy and confidentiality about the fact that you edited their book expires on publication. But other expectations of privacy and confidentiality do not expire, such as the client’s expectations regarding the details of your relationship.

Suppose a colleague sees on your website that you edited a book by John Jones. The colleague has been approached by Jones to edit a new book and the colleague contacts you, asking for all of the details of your relationship with Jones, such as the manuscript condition, payment, amount of handholding required, etc. Your relationship with Jones was problematic. The manuscript was in bad shape, Jones disputed every suggested change, and Jones refused to pay 100% of the final invoice, feeling that you overcharged by “fixing” problems that didn’t exist. What should you disclose to your colleague?

Is it okay to disclose relationship details to colleagues?

Our tendency is to disclose all of our miseries to our colleagues after first stating, “This is just between us and not for rebroadcast.” Alas, when an individual author is involved, I do not think starting the conversation with such a condition makes a difference. But with a business, such as a major publisher, I think the outcome is different — and it does not matter whether the conversation is preceded by the “between us” condition.

As I have said many times, the difference is expectation. Businesses may have the same expectation as the individual author, but in the absence of an express agreement to the contrary, businesses are not entitled to the same deference to that expectation, and that’s because of the difference in the relationship.

No matter how unsatisfactory our relationship was with Jones, we are not entitled to disclose the elements of the relationship even under the condition of its not being repeated. This is not to say that there is no response that we can give. We can respond succinctly and generally: “I would not agree to edit another book by Jones.” It is the details that we cannot discuss without client consent.

Why shouldn’t we discuss the details?

The primary problem with editing is that it is subjective. When we claim a client’s manuscript is poorly written, we are expressing our personal, subjective opinion — we are not expressing objective fact. It is the “tomayto”–versus–“tomahto” problem. I can’t even say that a client’s manuscript needs significant adjustment to meet Chicago style, because Chicago is not a set of rules that cannot be broken; Chicago is a collection of opinions from a group of people someone has declared have a more valuable opinion than mine.

Although editing is not objective, whether the client pays invoices in a timely manner would appear to be objective. But even that is not objective. A client can be delaying payment because the client is unhappy with our work, or believes we are charging more than was agreed, or thinks we padded the invoice by adding hours that we didn’t actually work or need to work, or for any number of other legitimate reasons.

It is client identification that rules the roost

Which brings us full circle, back to the ultimate problem: The client cannot defend himself or offer explanations; the discourse is fully one-sided. Consequently, from an ethical perspective, we should not discuss our relationship with an individual client in the absence of the client’s agreement. The client has an expectation of privacy and confidentiality that as professionals we should uphold.

Remember that the key is client identification. We can discuss a manuscript’s quality if there is no way to connect the manuscript to the client. It isn’t the manuscript that has an expectation of privacy; it is the client. Thus the 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. Consequently, it is unethical to discuss any facet of our relationship with a nonbusiness individual, including compensation problems and quality or condition of their manuscript, if doing so would be connected to the nonbusiness individual, in the absence of prior consent.

Do you agree? What is your opinion?

Richard Adin, An American Editor

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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