The Ombudsman Privilege is a House of Cards: The Organizational Ombudsman’s Hopeful but Unrealized Promise of Privilege and a Roadmap for Keeping the Promise

41 Tex. Rev. Litig. 33 (forthcoming 2022)

Arizona Legal Studies Discussion Paper No. 22-01

70 Pages Posted: 7 Jan 2022

See all articles by Diana Simon

Diana Simon

James E. Rogers College of Law, The University of Arizona

Date Written: January 7, 2022

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.

Keywords: privileges, colleges and universities, ombudsman privilege, browsewrap agreements, confidentiality, twin principles, Supreme Court authority

Suggested Citation

Simon, Diana, The Ombudsman Privilege is a House of Cards: The Organizational Ombudsman’s Hopeful but Unrealized Promise of Privilege and a Roadmap for Keeping the Promise (January 7, 2022). 41 Tex. Rev. Litig. 33 (forthcoming 2022), Arizona Legal Studies Discussion Paper No. 22-01, Available at SSRN: https://ssrn.com/abstract=4003502

Diana Simon (Contact Author)

James E. Rogers College of Law, The University of Arizona ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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