Secrecy in Courts*
An Interview with Anthony D'Amato
there any confidential matters, intellectual
property, trade secret, national security
cases, etc., that would justify closed courtrooms,
sealed papers, and the like?
Hardly ever. Keeping things away from the
people is not something that I ... want. I don't
want people to "protect me" by keeping information
away from me.
In the Pentagon Papers case, for example,
the government wanted to keep everything
secret. But the Court finally said it should
come out; it's part of our history, even though
it embarrassed the administration. Now if the
court had kept those papers secret, it would
have been very difficult for our ability to
understand the Viet Nam War and all the decisions
that went into it.
Occasionally, there are trade secrets, but
very rarely. Very rarely is a trade secret much
of a secret. Very rarely is the name of a person
going to jeopardize an agent in the field in a
spying mission. These are very overrated
kinds of examples.
I think the public has a right to know, and
the public should decide what to do about
these things. The courts shouldn't put a muzzle
on anything. You can compare it to freedom
of the press. With freedom of the press,
won't the government get criticized, won't
some people be embarrassed, etc.? Of course.
But we lose much more by not having that
How frequently do you discover parties to
lawsuits having ex parte contact with judges
or other decision-makers?
I think it happens in very small towns and
places that have country clubs including
judges and practitioners. In a large city, it
doesn't happen very often. It's more of a
problem where judges run for office, and
practitioners contribute huge sums of money
to their campaigns, as in Texas. I have no
doubt that the judges there engage in payback
when their contributors are involved in cases.
On the whole, however, we're pretty good in
this country for the amount of socializing that
goes on between judges and lawyers. There is
a lot less [ex parte contact] than one would
think, simply because everyone is so afraid of
doing it. So we're not too bad on that issue, I
Have you ever heard of an example of a secret
hearing in which only one side is allowed to
attend, offer testimony without cross-examination,
and no transcript is taken and the
judge's findings are sealed fiom public view?
I don't recall having heard of such a thing.
Judges are not barred from talking with one
side or the other. Usually, they're very careful
about it they let the other side know. In fact,
they often talk with both sides privately when
they are trying to effectuate a settlement in the
case. But if the judge just talks with one side,
how does the other side hear about it? I'm not
likely to hear about it if there is an ex parte
communication; it's probably going to be kept
There was a judge in Chicago Judge
Holzer who was convicted of bribery. He
took bribes from attorneys while he was adjudicating
their cases. So obviously, he had
plenty of ex parte communication with those
Why aren't television cameras permitted to
televise trials or proceedings? Why shouldn't
we be allowed to view Supreme Court proceedings?
Proceedings should be televised. There is
nothing secret about a trial. It should always
be open. I think the Supreme Court is just a
little bit stuffy about televising its proceedings.
The justices want to maintain their dignity
they don't want some camera to catch
them stumbling on their way to the bench or
something like that. So they're very protective
of themselves, but they are setting a bad
example. No court should be closed. All judicial
proceedings, all administrative hearings,
all legislative sessions should be available to
television reporting. The Soviets used to have
secret trials. There is no room in this country
for even starting that kind of thing.
Is it ethical/moral for attorneys to enter into
confidential settlements such as the early
church sexual abuse settlements, which were
confidential and allowed abuse to continue
for decades, and the Firestone early settlements
which were kept confidential as tires
continued to blow out and kill people?
It is unethical, in my view, for the judge to
approve a confidential settlement. Judges
shouldn't do that. Attorneys can make whatever
deal they want for their parties parties
do it all the time. An insurance company will
say, "Look, I'll pay you more money, but I
don't want you to tell anyone about it, because
then they'll all want more money." And a lot
of people will react to this by thinking, "Well,
heck, if you're putting more money in my
pocket, what do I care about everybody else?"
So, an attorney who is representing that party
can't tell him not to do that. So you see, there
will be examples of parties keeping settlements
confidential. But it seems to me that
judges should not give it a judicial imprimatur,
such as using their contempt power to
prevent the parties from revealing the settlement.
In order to facilitate settlement, the judge
may sometimes have to agree to have the
terms kept confidential. In my view, that's
wrong. It should be public information. After
all, the parties are using the courts as an
instrument. The courts are part of our country
we own the courts, and we shouldn't be keeping
secrets from ourselves.
Should the code of ethics be changed to prohibit
such secret settlements once litigation
has begun and require the terms of all settlements
to be put on the court record?
I think a court would say that it will not condone
a secret settlement; however, if the parties
settle outside of court, the court just
records that the case has been dropped. But
the court certainly shouldn't issue a gag order
on both sides not to disclose the terms of the
settlement. That, I think, is wrong. It's using a
public facility the court to withhold information
from the public. That's not my conception
of what a court should be like in a democratic
In the recent cases of clergy abuse, the clerical
leaders followed their counsel's advice to
hide the wrongdoing, which proved to be a
terrible mistake. Why do people put so much
trust in lawyers with regard to secrecy versus
openness, following their advice, which is
usually bad in every way but legally (i.e., is
usually bad from the standpoint of honesty,
openness, and public relations), when law is
such a secretive profession, filled with secretive
I don't know. In this country, so many people
have to put their trust in lawyers, because the
lawyer is out there fighting for them. The
church is entitled to a lawyer, too. The clients
apparently approved these secret settlements.
It's another case of "OK, we'll pay your million
dollars but don't tell anybody, because if
you do then a whole bunch of people will
come out of the woodwork and want the same
So the church is being immoral in doing
that, the client is being immoral, but I don't
see how you can throw the blame on the attorney,
because what can the attorney say? After
all, it is a settlement, and after all, the client
wants these terms. If I were an attorney in the
case, I would say to my client, "Look, it really
makes me sad that you would want to withhold
this information because there are other
people out there who have been harmed just
like you have been harmed," but I obviously
can't stop my client from doing it. I have no
right to say no. The client would have a right
to fire me if I tried to force him to reveal the
terms of the settlement.
People who are plaintiffs in cases go along
with the secrecy because the other side gives
them more money. "We'll give you a million
dollars, but it's hush money. You better shut
up; otherwise, we'll give you one thousand,
and we'll fight you all the way. We'll deny
that we did anything wrong, we'll spend years
in court, you'll lose your shirt, and you may or
may not even get the thousand. But if you
want a million, if you want to become rich,
then you've got to shut up."
The church is acting like any big corporation
they all do the same thing. Insurance
companies do that. If they can shut the people
up, they buy them off. Attorneys can't really
do much about that, but courts shouldn't
actively condone it by issuing gag orders as
part of the settlement. After all, no one is
forcing the judge to accept the settlement.
This is a situation where the judge should
be looking out for other people who are
harmed. If the judge issues a gag order against
the parties when the issue is abuse of young
boys by the clergy, then the judge knows that
he or she is participating in a cover-up that
will adversely affect the rights of other people.
So judges, in my opinion, should not
issue confidentiality orders in those cases. I
suspect that the main reason judges go along
with confidentiality orders is to get the cases
settled and thus reduce their own docket of
cases to deal with. If true, this is a very narrow
minded, crabbed view of their judicial responsibility.
*Taken from: The Long Term View: A Journal of Informed Opinion, Vol. 6, pp. 23-25 (2003). Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.
Anthony D'Amato is Leighton Professor of Law at Northwestern University School of Law (http://anthonydamato.law.northwestern.edu). For more on secret prosecutions, click here.