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Abstract- Since the creation of United Nations, the ICJ, popularly known as the World Court, has brought and boosted a positive spirit in international law by infusing the basic ideologies and fundamental principles courtesy its various pronouncements which are slowly transforming in the customary rules of international law. ICJ, since its inception albeit by adhering to some limitations, has done wonders to instill faith of States in international law. However, ICJ is affected by a serious problem for the enforcement of its judgment besides the compulsory jurisdiction issues. The Security Council, the enforcement wing of the UN is the catalyst body to express and execute the will and desires of some States. This paper shall scrutinize the unique relationship that both of these organs of the UN shares. It also highlights the problems and prospects relating to the implementation of ICJ’s decisions and the crucial role, sometimes even overlapping, of the Security Council.
The International Court of Justice is the principal judicial organ of the Court and is also known otherwise as 'the World Court'. The enforcement of its decisions becomes the responsibility of the Security Council. In this context, both ICJ and Security Council have their own duties, rights & obligations and they also share a unique relationship. ICJ, since its inception albeit by adhering to some limitations, has done wonders to instill faith of States in international law. However, ICJ is affected by a serious problem for the enforcement of its judgment besides the compulsory jurisdiction issues. A brief analysis of their relationship is necessarily required for the purpose of understanding of the various problems in the enforcement of ICJ’s decision. The Security Council, the enforcement wing of the UN is the catalyst body to express and execute the will and desires of some States. This paper will highlight as to how Art. 94 (2) and Art. 27 of the UN Charter turn into major obstacles in the path of development of public international law and international human rights.
Article 94 (2) sanctifies up on the Security Council the power to enforce the judgments of the International Court of Justice and seeks to establish a harmony between these two organs of the UN.
One must pay close attention to the word 'may' placed under Art. 92 (2) by virtue of which discretion is conferred on Security Council to enforce or not to enforce the judgments of the Court.
It is also very tragic and unfortunate to note that the ICJ Statute which governs and dictates the complete behavior of the Court and State parties also do not contain any provision for the enforcement of its own judgment which actually should bear a mandatory clause and a condition precedent for any States before they approach the World Court. In this context, it was suggested a number of times earlier that Art. 60 of the ICJ Statute must be amended to include the remedy in the form of 'Declaration of non-Compliance'2.
Article 94 (2) leaves much space for politics to be entered into the decisions of the Security Council while enforcing the judgments of ICJ and thus, corrupts the system. It runs contrary to Art. 60 of the Statute which states that the ICJ's judgment is final and without appeal.
In this context, the jurists and international authors are posed with yet another important question i.e. Can the judgments of ICJ be politically reviewed? The answer to this question would probably be in negative because both the UN Charter and ICJ Statute contain no provisions to that effect. However, one can argue that the decisions of the World Court can indeed be reviewed by other organs of the UN in many other indirect and informal ways. By resorting to Art. 24 (2), the judgments of ICJ may be reviewed keeping in mind various considerations like politics, economic relations with countries in favour of which the judgment has been delivered and other aspects which may be of contemporary value.
However, the use of Article 94(2) since its inception are still rare and utilized only on three occasions: this Article was used by the UK, in 1951, with respect to the Anglo-Iranian Oil Company case; by Nicaragua, in 1986, in the case against the United States and by Bosnia-Herzegovina, in 1993, in the case against the Federal Republic of Yugoslavia3.
The Anglo-Iranian Oil Company case4 was a typical case of 'litispendence'. With respect to the ICJ’s order, the Security Council exercised its discretion and decided to adjourn the Council’s meeting on the issue until the final judgment form ICJ handed down.
Similarly the case of Military and Paramilitary Activities in and against Nicaragua5 also highlights the use of Art. 94 (2) and ineffectiveness of the ICJ’s judgments and inability of the Security Council to deal with the situation. In this case, ICJ delivered the Judgment against USA and Nicaragua asked the Security Council to enforce the judgment as early as possible. Put to the vote, the draft resolution was not deemed to be adopted by the President of the Council due to the negative vote of the United States of America, a permanent Member of the Council.
There also exists an important question i.e. what would be the fate of the case instituted in ICJ if the matter has already been seized by the Security Council. The Famous Lockerbie Case6 may clarify the situation and provide the answer. Following the bombings of Pam A Flight 103, the US and UK jointly conducted investigations. Based on the findings of investigations, the Security Council adopted a resolution to extradite the suspects from Libya which Libya refused bluntly. Instead Libya instituted proceedings against both USA and UK in the International Court of Justice in the August of 1992. Libya’s application was based on Art. 14 (1) of the 1971 Montreal Convention which was then I force between the parties. It pleaded before ICJ to declare that Libya has resorted to national remedies in taking action against and suspects and has complied with all international norms. The United States raised an objection on the ground that the Security Council has already seized the matter of same substance which was mentioned in Libya’s application before ICJ and as a result the World Court should not deliver any provisional or other relief in the present matter.
It must always be projected that while dealing with each case, both Security Council and ICJ must be cautious. In the application of Art. 92 (2), the principle of ’Self-restraint’ must be followed by the Security Council. In enforcing the judgments of the World Court, the Security Council must give full effect to the judgment in order to ensure effectiveness and abidingness of the international law in general. Political and other consideration must fade away and the veto power in cases where the World Court’s decisions are involved must rarely be used. The incidents like Nicaragua must strictly be avoided. The best way feasible in this regard is to amend the relevant provisions of the UN Charter and also the provisions of ICJ Statute specifically to include the power to issue ’declaration of Non-Compliance’.

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Art. 92


Phillip L. Davidson (argued and briefed), Nashville, TN, for Plaintiffs-Appellants.
Thomas L. Reed, Jr., Office of the City Attorney, Murfreesboro, TN, Larry G. Trail (argued and briefed), Trail & Taylor, Murfreesboro, TN, for Defendants-Appellees.
Before: MERRITT, JONES, and NORRIS, Circuit Judges.
MERRITT, J., delivered the opinion of the court, in which NORRIS, J., joined. JONES, J. (pp. 358-60), delivered a separate dissenting opinion.
In this reverse discrimination case, two white firefighters appeal the dismissal of their action brought against the City of Murfreesboro, Tennessee and the city's fire chief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The plaintiffs allege and offer some evidence to show that an African-American man was promoted to the rank of captain purely on the basis of his race, without regard to the respective qualifications of the candidates. They maintain that the District Court misapplied the law of the attorney-client privilege in two rulings regarding a meeting among the city attorney and other city officials. The plaintiffs contend that these rulings excluded crucial evidence that would have allowed them to prevail at trial. In response, the defendants argue that the plaintiffs have waived their right to appeal the District Court's rulings by failing to offer proof sufficient to preserve the issue for appeal. Although the plaintiffs failed to take steps that would have more clearly preserved the privilege issue for appeal, we conclude that they did enough in light of the District Court's broad rulings. The District Court's rulings rested on a misapplication of the law of the attorney-client privilege and denied plaintiffs the full opportunity to present their case at trial. Therefore, we vacate the judgment of the District Court and remand the case for further proceedings.
In 1992 the Murfreesboro Fire Department took steps to fill a captain's position left vacant when Henry Knox, a black man, was fired. The Department notified prospective candidates that it would select three finalists for promotion to the position based on a combination of test scores, length of service, and number of state certifications. Defendant Baxter was to interview the finalists and recommend one of them to City Manager Roger Haley for the promotion.
In December 1992, the plaintiffs and others took a written test created by the Department's Training Officer, Billy Vinson. After the test was graded, Vinson transmitted to the Chief a list of the three applicants most qualified for the position based on the initial promotion criteria--plaintiff Henry Sharber, another white applicant, and an African-American candidate. Vinson then double-checked the results and determined that the list he had sent to Chief Baxter failed to include one candidate who should have ranked among the top three. Chief Baxter requested a list of the top five candidates based on the original criteria. The new list, also prepared by Vinson, included the two plaintiffs, one other white applicant, and two African-American candidates.
As the process continued, more problems arose with the test. The Chief received a grievance by an applicant who claimed that the test was unfair because several of the questions contained multiple correct answers. The Promotion Board determined that five of one hundred questions had multiple correct answers and recommended that all applicants be given credit for those questions. The Department's Grievance Committee recommended to the Chief that the test results be set aside. In the meantime, Training Officer Vinson determined that at least four other tests had been incorrectly scored.
In light of problems with this and other previously administered tests, Chief Baxter looked into the possibility of obtaining a professionally prepared test. After concluding that cost and time concerns precluded that option, Baxter asked Vinson to determine whether all of the applicants had achieved a passing score on the test. Upon learning that they had, Baxter decided to nullify the test by giving all applicants equal credit. He then instructed Vinson to prepare a list of the top three candidates using the other two criteria--length of service and number of state certifications.
The finalists on this list included Thomas Adams, who is white, and Thomas McClain and Emmet Young, both of whom are African-Americans. Young had not appeared on any of the prior lists. Chief Baxter interviewed these three individuals and recommended Young to City Manager Haley for promotion. On December 15, 1992, Haley promoted Young, who at the time had eighteen years of service and who had served as an Instructor/Captain in 1987.
On December 16, 1992, the day after the promotion, City Attorney Thomas Reed, Councilmen Christopher Bratcher and Jack Ross, City Manager Haley, and Chief Baxter met in Haley's office. Ross Dep. at 13, R. 26, J.A. at 80. Councilman Ross called the meeting to inquire into the circumstances surrounding Young's promotion. The plaintiffs contend that statements made during this meeting reveal that Young received the promotion purely because of his race. They say that during the meeting, City Attorney Reed informed Councilmen Ross and Bratcher that he had advised the Department to promote an African-American because of the controversy that had arisen out of Henry Knox's termination. The defendants concede that during the meeting Reed disclosed the legal advice he had given City Manager Haley and Chief David Baxter regarding the promotion. Haley Aff. at 1-2, R. 8, J.A. at 53-54; Defs.' Mot. in Limine at 1-2, R. 30.
The plaintiffs filed this action in District Court on December 8, 1993, alleging that the defendants violated Title VII by promoting a less qualified African-American to the captain's position purely on the basis of race. During discovery, the plaintiffs issued subpoenas to depose City Attorney Reed, and Councilmen Bratcher and Ross. The defendants moved to quash the subpoenas or for a protective order, contending that the depositions would inquire into a conversation protected by the attorney-client privilege.
The District Court denied the defendants' Motion to Quash but invoked its power under Fed. R. Civ. P. 26(c) to grant a protective order instructing the plaintiffs not to inquire into areas protected by the attorney-client privilege or the work product doctrine. Acknowledging that the scope of these areas was unclear, the District Court ordered that the depositions be sealed until it could rule on objections to specific testimony. The court based its order on the following findings: (1) that the parties to the December 16, 1992 meeting discussed pending litigation (i.e., an EEOC claim filed by Henry Knox following his termination) in which the city was a named party; (2) that Reed was acting as city attorney during the meeting; and (3) that Ross and Bratcher were city councilmen at the time of the meeting.
The plaintiffs deposed Councilmen Ross and Bratcher but did not depose Reed. During his deposition, Ross testified that he believed, based on statements made during the meeting of December 16, 1996, that race may have been one of many reasons Emmet Young received the promotion. Bratcher testified that the same statements had given him reason to believe that Young received the promotion because of his race. Neither Ross nor Bratcher discussed specific statements made during the meeting.
During a pretrial hearing, the District Court granted the defendants' motion in limine to exclude the opinions of Councilmen Ross and Bratcher regarding the promotion and testimony regarding statements made during the December 1992 meeting. The court did not state the basis for its ruling, but the parties assume it was based in substantial part on the attorney-client privilege. The plaintiffs sought interlocutory appeal of this ruling. This Court dismissed that appeal for lack of a final appealable order.
A bench trial was held on June 16, 1996. The District Court dismissed the case on September 3, 1996, for lack of merit, holding that the plaintiffs had failed to establish a prima facie case of discrimination. The court stated that even if the plaintiffs had been able to make a prima facie case, they could not have carried their burden of persuasion.
The defendants assert that even if the District Court's rulings constitute reversible error, the plaintiffs waived their right to appeal by failing to make a complete offer of proof as required under Fed.R.Evid. 103(a). The defendants accurately point out that the plaintiffs failed to offer testimony for the record from Councilman Ross or City Attorney Reed. They also contend that although Bratcher did testify, the plaintiffs made no offer of proof regarding any statements made during the December 1992 meeting. The only offer of proof attempted by the plaintiffs regarded Bratcher's opinion about the promotion determination, which the trial court rejected as irrelevant. Tr. at 21, R. 69, J.A. at 135.
Moreover, the defendants point out that although plaintiffs filed the depositions of Ross and Bratcher with the court during the motion in limine arguments, they never offered these items into evidence at trial. Relying on Worsham v. Duke, 220 F.2d 506, 509 (6th Cir. 1955), they argue that the plaintiffs may therefore not attempt to use these depositions as evidence of the testimony that would have been offered regarding the meeting. The defendants assert that without the depositions, there is no direct evidence before this Court regarding the substance of the testimony the plaintiffs sought to introduce. They further contend that even if the depositions are considered, the testimony constitutes statements of the councilmen's opinions regarding the promotion, which are irrelevant with respect to the ultimate issue in the case.
Although the plaintiffs failed to take steps that would have more clearly preserved the attorney-client privilege issue for appeal, the lack of evidence in the record regarding the content of the meeting is attributable primarily to the confusion caused by the District Court's broad rulings excluding in advance any inquiry into evidence that may be covered under the privilege. Confusion over the scope of the court's protective order is evident in the depositions of Councilmen Ross and Bratcher. During the Bratcher deposition, counsel for the defendants objected as soon as it appeared the plaintiffs' attorney was going to ask about statements made during the December 1992 meeting. Defense counsel stated, "I think the order prohibits you from inquiring directly into things that are covered by [the attorney client privilege]," and "the Court has clearly ruled that the meeting itself was privileged." Bratcher Dep. at 8, R. 27, J.A. at 99. After some debate over the order, plaintiffs' counsel appeared to concede that in light of the court's broad ruling, he could not ask about the meeting. Rather, he simply asked Councilman Bratcher whether he had reason to believe that Young had been promoted because of his race. Bratcher Dep. at 8-9, R. 27, J.A. at 99-100. The same confusion was apparent during the Ross deposition. When plaintiffs' counsel attempted to elicit testimony about the content of statements made at the meeting, Councilman Ross refused to answer on the basis of the protective order. Ross Dep. at 20-21, R. 26, J.A. at 87-88. While plaintiffs' counsel may have been able to extract more specific testimony regarding the meeting through more aggressive questioning, the court's unclear order limited the plaintiffs' ability to put evidence into the record.
The proposed Pre-Trial Order states that " [i]t is the Plaintiffs' position that ... what was said at [the December 16, 1992] meeting will clearly show that the reason for the promotion of a less qualified black employee over the two more qualified white employees was based on race...." Proposed Pre-Trial Order at 2 (docketed Dec. 1, 1994). In one of their motions in limine, the defendants argued that the conclusions of Ross and Bratcher regarding the role race played in the promotion "are wholly derived from statements made by City Attorney Thomas L. Reed, Jr. in a meeting of December 16, 1992...." Defs.' Mot. in Limine at 1-2, R. 30. The District Court was aware of the substance and significance of the excluded evidence. In light of the confusion caused by the District Court's orders, we believe that the plaintiffs took steps sufficient to preserve their right to raise this issue on appeal. Waltzer v. Transidyne Gen. Corp., 697 F.2d 130, 134 (6th Cir. 1983) (excusing failure to make offer of proof where trial court was made aware of general nature of excluded evidence).
The plaintiffs maintain that the District Court's rulings rested on misapplication of the law regarding the attorney-client privilege. They contend that Councilmen Ross and Bratcher participated in the December 1992 meeting as third parties rather than as clients. The plaintiffs maintain that the discussion was not held in confidence and is therefore not entitled to protection from disclosure under the attorney-client privilege. They also contend that the disclosures made at the meeting by the city executive officials had the effect of waiving the privilege.
The question of whether the attorney-client privilege applies is a mixed question of law and fact, subject to de novo review. See In re Grand Jury Proceedings October 12, 1995, 78 F.3d 251, 253-54 (6th Cir. 1996). Questions of privilege are to be determined by federal common law in federal question cases. Fed.R.Evid. 501. The elements of the attorney-client privilege are as follows: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived. Fausek v. White, 965 F.2d 126, 129 (6th Cir. 1992) (citing United States v. Goldfarb, 328 F.2d 280, 281 (6th Cir. 1964)).
The privilege is based on two related principles. The first is that loyalty forms an intrinsic part of the relationship between a lawyer and client in our adversary system. This loyalty is offended if the lawyer is subject to routine examination regarding the client's confidential disclosures. Kenneth S. Broun, et al., McCormick on Evidence § 87, at 205-06 (3rd ed.1984). The second principle is that the privilege encourages clients to make full disclosure to their lawyers. A fully informed lawyer can more effectively serve his client and promote the administration of justice. Id. § 87, at 205; id. § 89, at 212.
The privilege serves these purposes, but it comes with substantial costs. The privilege excludes relevant evidence and stands "in derogation of the search for the truth." United States v. Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 3108, 41 L. Ed. 2d 1039 (1974). When an organization such as a corporation is the client, the costs imposed by application of the privilege increase. Given the number of employees who may have information relevant to litigation by or against a corporation, administration of the privilege by the courts proves difficult. More significantly, " [w]here corporations are involved, with their large number of agents, masses of documents, and frequent dealings with lawyers, the zone of silence grows large." David Simon, The Attorney-Client Privilege as Applied to Corporations, 65 Yale L.J. 953, 955 (1956); see also 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5476, at 189 (1986); id. § 5476, at 29 (1997 Supp.) (noting that corporations may use the privilege to prevent the disclosure of information useful to adversaries simply by funneling it through lawyers).
Despite these doubts, it is now well settled that private corporations and other organizations may constitute clients for purposes of the attorney-client privilege. Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Proposed Federal Rule of Evidence 503 would have extended this rule to municipal corporations and other governmental entities by defining "client" to include "a person, public officer, or corporation, association, or other organization or entity, either public or private...." Proposed Fed.R.Evid. 503(a) (1) (1972) (rejected by Congress), reprinted in Michael H. Graham, Handbook of Federal Evidence § 503.1 (4th ed.1996); see also Restatement (Third) of the Law Governing Lawyers § 124 (Proposed Final Draft No. 1, 1996) (" [T]he attorney-client privilege extends to a communication of a governmental organization...."). Although we have assumed that a governmental entity such as a municipal corporation may invoke the attorney-client privilege, see In re Grand Jury Subpoena (United States v. Doe), 886 F.2d 135 (6th Cir. 1989), we have never explicitly so decided. Because we find that the requirements of the privilege have not been satisfied in the present case, we need not resolve this question today.
Assuming that the privilege applies, " [i]t is appropriate to recognize a privilege 'only to the very limited extent that ... excluding relevant evidence has a public good transcending the normally predominant principal of utilizing all rational means for ascertaining truth.' " Trammel v. United States, 445 U.S. 40, 50, 100 S. Ct. 906, 912, 63 L. Ed. 2d 186 (1980), quoted in In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 (8th Cir.) (internal quotation marks omitted), cert. denied sub nom. Office of President v. Office of Indep. Counsel, --- U.S. ----, 117 S. Ct. 2482, 138 L. Ed. 2d 991 (1997). Guided by this principle, courts and commentators have cautioned against broadly applying the privilege to governmental entities. See Restatement (Third) of the Law Governing Lawyers § 124, cmt. b; 24 Wright and Graham § 5475, at 126. The recognition of a governmental attorney-client privilege imposes the same costs as are imposed in the application of the corporate privilege, but with an added disadvantage. The governmental privilege stands squarely in conflict with the strong public interest in open and honest government. In re Grand Jury Subpoena Duces Tecum (Office of President v. Office of Indep. Counsel), 112 F.3d at 916, 920-21.
Councilmen Ross and Bratcher participated in the December 1992 meeting, along with the city attorney, the city manager, and the fire chief. It is clear that the attorney-client privilege will not shield from disclosure statements made by a client to his or her attorney in the presence of a third party, 8 John Henry Wigmore, Wigmore on Evidence § 2311 (3d ed.1940), but there is little authority about which agents of an organizational client are the client for purposes of the attorney-client privilege. In In re Grand Jury Subpoena (United States v. Doe), 886 F.2d 135 (6th Cir. 1989), our only case to address the issue in a governmental context, we found that the Detroit City Council was a client of the city's attorney with respect to closed condemnation hearings held pursuant to the city code. Accordingly, we held that the District Court had erred in concluding that the city council could not invoke the attorney-client privilege to protect the minutes of the meetings. Id. at 138.
In Doe, the city attorney called meetings of the full city council pursuant to a provision of the city code providing for formal council approval of condemnation proceedings. Id. at 137-38. Because the city code required the city council itself to initiate such proceedings, the Doe court concluded that the city and the city council were the same entity for purposes of the attorney-client privilege. Id. at 138. The court held that under these circumstances the city council was the client of the city attorney and could invoke the privilege. Id. The Doe court then remanded the case to the district court to determine whether the privilege would apply, a question that depended on the confidentiality of the communications at issue. Id. at 139.
The factors that led the Doe court to reach its conclusions are not present in this case. The December 1992 meeting was not a full meeting of the city council called pursuant to any provision of the city code. Councilman Ross called the meeting in response to complaints he had received from constituents about the promotion process. Ross Dep. at 7, R. 26, J.A. at 74. The interests of the councilmen and the interests of the city executives were not the same. The councilmen were not clients at a meeting with their lawyer. Rather, they were elected officials investigating the reasons for executive behavior.
The Eighth Circuit's recent decision in In re Grand Jury Subpoena Duces Tecum (Office of President v. Office of Indep. Counsel), supra, is helpful. In that case, the Independent Counsel moved to compel the production of notes taken during meetings pertaining to several Whitewater-related subjects and attended by White House lawyers, the President's wife, and her lawyers. Both the White House and the President's wife moved to block production of the notes on the basis of the attorney-client privilege. They relied in part on the common-interest doctrine, which expands the coverage of the attorney-client privilege where two or more clients with a common interest in a matter are represented by separate lawyers and agree to exchange information concerning the matter. In such instances, a communication of any such client that otherwise would qualify as privileged is privileged as against third parties. 112 F.3d at 922 (citing Restatement (Third) of the Law Governing Lawyers § 126(1) (Proposed Final Draft No. 1, 1996)).
Writing for a divided panel, Judge Bowman rejected the assertion of the privilege in part because of disparity of interest between the White House and the President's wife. 112 F.3d at 922-23. Judge Bowman noted that the common interest necessary to invoke the privilege under such circumstances may be "either legal, factual, or strategic in character," but held that the standard had not been satisfied. Id. at 922 (citation omitted). He concluded that while the primary interest of the President's wife in the investigation was avoiding criminal conviction, the White House as an institution faced no such threat. Id. at 923.
Although the defendants have not asserted the common-interest doctrine in this case, the same sort of disparity of interest that led to the rejection of the privilege with respect to the White House meetings is also present here. This divergence precludes us from concluding that Councilmen Ross and Bratcher acted as clients of the city's lawyer during the December 1992 meeting. City Manager Haley and Chief Baxter participated in the discussion as the agents of the city responsible for making the promotion that led to this lawsuit. As fire chief, Baxter was the person ultimately responsible for devising and applying the Department's promotional policy. Exercising the discretion afforded him by the city charter, Haley accepted Baxter's recommendation and promoted Young. Thus, it is the conduct of Baxter and Haley that threatens to expose the city to liability.
Contrary to the statements made by our dissenting colleague, Councilmen Ross and Bratcher played no role in the promotion of Emmet Young. At the time of Young's promotion, the Murfreesboro city council served as a review board for appeals arising out of the hiring and firing of most city employees, including firefighters. There is no indication whatever in the record that the city council or individual councilmen played any role in firefighter promotions. In fact, in response to plaintiff Reed's EEOC complaint, the defendants stated that under the city charter, "the authority for promotions rests with the City Manager, exclusively." City's Resp. to EEOC charge, Baxter Dep. Ex. 21, R. 28. The factual representations to the contrary made in the dissenting opinion are in error. Councilmen Ross and Bratcher initiated the December 1992 conversation not to obtain the advice of the city attorney--who apparently participated in the meeting at the request of Haley and Baxter, Ross Dep. at 13-14, R. 26, J.A. at 80-81--but to inquire into the basis for the promotion of Young, which had apparently been challenged by their constituents as based on race.
In sum, the interests of Ross and Bratcher were adverse to those of Haley and Baxter, and the two councilmen were not clients of the city attorney with respect to the meeting of December 16, 1992. Because Councilmen Ross and Bratcher participated in the meeting as third parties, the discussion was not held in confidence for purposes of the attorney-client privilege. See 8 Wigmore § 2311 ("One of the circumstances [ ] by which it is commonly apparent that the communication is not confidential is the presence of a third person...."). Their discussion is not shielded from disclosure by the attorney-client privilege.
The attorney-client privilege issue should be decided only on the basis of neutral principles of law, and not on the basis of the racial considerations recited in the last paragraph of the dissenting opinion. The situation might very well be in reverse--an African-American plaintiff could well be claiming discrimination in promotion. Our ruling on the attorney-client privilege should not be made to depend on "the remedial purposes behind the Civil Rights Act" or whether the city needs to "maintain diversity," as our dissenting colleague suggests. Our ruling on this narrow issue should be color blind and not personal, subjective, or based on multi-cultural considerations.
The District Court's protective order and pretrial ruling rested on a misapplication of the law of the attorney-client privilege and denied plaintiffs the opportunity to develop their case fully at trial. We therefore VACATE the judgment of the District Court and REMAND the case for further proceedings consistent with this opinion.
NATHANIEL R. JONES, Circuit Judge, dissenting.
The issue before this Court is one of first impression. The majority found that two city councilmen, acting in their official capacities, were third parties in a confidential meeting with the city attorney, and were thus not covered by the attorney-client privilege. Because I feel that the majority construed the attorney-client privilege too narrowly in this context, I respectfully dissent.
It is well settled that agents of a client are covered by the attorney-client privilege to the same extent as the client. See, e.g., John Labatt Ltd. v. Molson Breweries, 898 F. Supp. 471, 473 (E.D. Mich. 1995) (noting general rule that attorney-client privilege covers communications between client's representatives and client's lawyer). Additionally, the majority has recognized that private corporations and other organizations who are analogous to governmental entities may constitute clients for purposes of the attorney-client privilege. The majority has even recognized that this court has, in its only case addressing the attorney-client privilege in the governmental context, held that a city and city council were the same entity for the purposes of the attorney-client privilege and thus, as client's of the city attorney, a city council could invoke the attorney-client privilege. See In re Grand Jury Subpoena (United States v. Doe), 886 F.2d 135 (6th Cir. 1989). Yet, the majority found that in this case, a meeting between two city council members, the city manager, city attorney and city fire chief concerning confidential legal advice and action, did not fall within the ambit of the attorney-client privilege. I disagree.
The majority's primary justification for holding that the privilege does not apply in this case is their belief that there is disparity of interest between the city councilmen and those whose activities directly affected the promotion at issue. The majority cites In re Grand Jury Subpoena Duces Tecum (Office of President v. Office of Indep. Counsel), 112 F.3d 910 (8th Cir.), cert denied sub. nom, --- U.S. ----, 117 S. Ct. 2482, 138 L. Ed. 2d 991 (1997) as support for that proposition. In that case, however, the President's wife, in her personal capacity, was attempting to assert the attorney-client privilege with regard to a meeting she had with the White House lawyer. Id. at 922. Mrs. Clinton did not allege that she was either an agent of the White House or acting in her official capacity as First Lady. Thus, she was not considered a client of the White House attorney. Mrs. Clinton, to the contrary, merely asserted that although a third party, the common interest doctrine covered her meeting with the White House attorney. Id. at 922. Here, the city councilmen do not have to rely on the common interest doctrine because they attended the meeting in their official capacity as city councilmen. The city council is clearly an agent of the City and as such, is a direct client of the city attorney. Doe, 886 F.2d at 138. Moreover, In re Grand Jury Subpoena Duces Tecum (Office of President v. Office of Indep. Counsel), involved application of the attorney-client privilege in the criminal context. As justification for a narrower reading of the attorney-client privilege, the court noted that it was significant that executive branch employees, including attorneys, were under a statutory duty to report criminal wrongdoing by other employees. 112 F.3d at 920. The court also specifically found that application of the attorney-client privilege in civil litigation would present a different issue. Id. at 917-918.
Furthermore, the fact that Councilmen Ross and Bratcher did not play a direct role in the promotion and therefore did not directly expose the City to liability does not remove them from the reach of the attorney-client privilege. In Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), the Supreme Court rejected such a narrow application of the attorney-client privilege in the corporate context. In Upjohn, this court had determined that the "control group" rather than the broader "subject matter" test was applicable for measuring the scope of the attorney client privilege in the corporate context. See United States v. Upjohn Co., 600 F.2d 1223, 1225 (1979), rev'd 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Under the subject matter test all employees of the corporation were considered agents of the corporation, and if in possession of information acquired in the ordinary course of business relating to the subject matter of her employment and the information was communicated confidentially, were covered under the attorney-client privilege. Id. at 1226. Only if the communications did not cover communication of pre-existing documents prepared for independent business reasons, or communications unrelated to the subject matter of the agent's employment, were communications between the corporate attorney and the employee excluded from the reach of the privilege. Id. Under the narrower control group test, however, only those communications made by the "control group" of the corporation, "those officers, usually top management, who play a substantial role in deciding and directing the corporation's response to the legal advice given," were covered by the privilege. Id. at 1226. The Supreme Court granted certiorari and rejected this Circuit's application of the narrow control group approach with regard to the attorney-client privilege in the corporate context. See Upjohn Co. 449 U.S. at 392-93, 101 S. Ct. at 684-85. The Court noted that the control group test "frustrate [d] the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation." Id. at 392, 101 S. Ct. at 684. The Court criticized the narrow scope given the attorney-client privilege in the court below because it "not only [made] it difficult for corporate attorneys to formulate sound advice when their client [was] faced with a specific legal problem, but [it] also threaten [ed] to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law." Id. Thus, the Court found that the control group test was inapplicable and that because the communications in the case concerned matters within the scope of the employee's corporate duties, their communications with the corporate attorney were covered by the privilege. Id. at 394-95, 101 S. Ct. at 685-86.
Upjohn provides clear reasoning for rejecting the majority's construction of the privilege in this case. Although not directly in charge of promotions in the City, City Councilmen Ross and Bratcher are intricately involved in the process. All hires and fires of all city employees are subject to an appeal directly to the city council. The termination of Henry Knox was appealed to the city council and caused the opening for the promotion at issue in this case. Clearly, because the city council must vote on the propriety of promotions if contested, its members have not only an interest, but a duty to discuss the legal ramifications that may be relevant in making their determinations. As the city attorney in this case noted, "it is important that all members of the city council be furnished, by the attorney, all relevant facts upon which to make their decision." (J.A. at 35) (Reed Aff.). Simply because the full city council was not present and Ross and Bratcher were not directly responsible for making the initial promotion decision, does not remove them from the reach of the attorney-client privilege. Indeed, under the majority's reasoning it would be nearly impossible for a city council ever to invoke the attorney client privilege. In most instances, a full city council meeting must be open to the public, which is not conducive to confidential discussions. A city council member then, would only be able to seek confidential legal advice in a private meeting with the city attorney, such as the meeting between the councilmen and city attorney in this case. The majority, however, would prevent such a meeting from being covered by the attorney-client privilege.
Finally, the underlying facts of this case do not merit the majority's narrow construction of the attorney-client privilege in order to preserve justice. The facts clearly illustrate that the promotion policy was changed due to problems with the Fire Department's test, and not simply as an effort to obtain a Black candidate. Indeed, as the majority points out, Chief Baxter had two opportunities to choose a Black candidate, which he did not utilize, before finally choosing Emmet Young. That race may have even played a small role in his final decision in an effort to ensure that the Fire Department maintain diversity in the face of an opposite history, and is perceived by its citizens as welcome to all, is not illegal and is in fact one of the remedial purposes behind the Civil Rights Act of 1964. The majority, in its rush to judgment, may well frustrate those very important ideals. Accordingly, I dissent.


The right to trial by jury is one of our society’s most valued liberties. According to a 1998 American Bar Association public opinion poll, 78% of the public rates our jury system as the fairest way to determine guilt or innocence, and 69% of those surveyed consider juries to be the most important part of the justice system.
Despite the public’s strong support of the jury system, interest in serving on juries has dropped off substantially in recent years. Each year, approximately 15 million Americans are summoned to jury duty. A significant number citizens simply ignore the juror summons. In some urban jurisdictions, fewer than 10% of its citizens respond. While a portion of this non-response rate is attributable to out-of-date records and summonses that are mailed to the wrong address, many citizens simply ignore their civic obligation and opportunity to serve. Those who do arrive at the courthouse often avoid service through “occupational exemptions” that benefit certain professions or come presenting flimsy “hardship excuses” to escape jury duty. All too often, they are successful. Jury duty can impose a severe financial hardship on working people. In most states, employers are not required to pay their employees during any period in which they are absent for jury service. These citizens are faced with receiving only a miniscule court fee (usually $10- 40) per day for their service, an amount that may not even reimburse them for transportation costs. High-income professionals avoid jury service through statutory exemptions, hardship excuses, and lax enforcement of summonses. Juror hardship is particularly great in the small percentage of trials that can last several days, weeks, or months. This trend has made it difficult to fill the jury box, increased courts’ administrative costs, and threatened the constitutional right to a representative jury.
Creating a fund to provide additional compensation for jurors selected to serve on long trials.
Providing that ignoring a juror summons is punishable as a criminal misdemeanor.
No one opposes the effort to encourage greater participation on juries.
Required all people to serve on juries unless they experience undue or extreme physical or financial hardship. Established a lengthy trial fund to compensate jurors up to $300 per juror, per day for trials lasting more than 10 days, starting on the eleventh day of trial. In such circumstances, jurors would also be eligible to retroactively collect up to $100 per day from the fourth day to the tenth day of service. The bill did not specify a financing mechanism, but tasked the Louisiana Supreme Court to develop recommendations for the Legislature to consider at some point in the future. Prohibited employers from dismissing or otherwise subjecting employees to any adverse employment action for responding to a jury service summons. Allowed for one automatic postponement from service.
Jury Service Reform: S.B. 1704 (2005).
Increases juror pay in both civil and criminal cases from not less than $6 per day to not less than $40 per day, beginning on the second day of service. The increased compensation is to be financed by a $4 fee placed on individuals convicted of a crime. Provides prospective jurors with one automatic postponement from service, in which case service must be rescheduled within six months after the date of the original summons.
Jury Service Reform: S.B. 479 (2004).
Provides jurors the right to automatically postpone service one time.
Provides jurors the right to automatically postpone service one time. Reduced the length of service from a two-week term to no more than one day unless selected to serve on a jury. Limits jury service to once every two years. Creates a lengthy trial fund which compensates jurors up to $200 per day, starting on the eleventh day of service – the fund is to be financed by a $10 filing fee on all civil cases. Provides jurors employment protections by prohibiting employers from penalizing jurors who serve. Provides small business protections by allowing an employee of a small business to differ service if another employee from the same firm is already serving in the same period. Increases penalties for no-shows.
Jury Service Reform: S.B. 240 (2005); Amended N.M. Stat. Ann. § 38-5-10.1; Amended N.M. Stat. Ann. § 38-5-2; Amended N.M. Stat. Ann. § 38-5-3.
Provides for: automatic postponement, allowing summoned jurors to reschedule service within six months of the original date; small business protections, allowing jurors who work for employers with fewer than five employees to postpone service if another employee is summoned within the same time period; leave time protection; and an expansion of juror source lists to include income tax filers. The legislation includes a hardship standard, defining that an excused juror must demonstrate that participating in their service would (1) be required to abandon another person under the person’s care or supervision due to the extreme difficulty of obtaining an appropriate substitute caregiver during the period of jury service; (2) incur costs that would have a substantial adverse impact on the payment of necessary daily living expenses of the person or the person’s dependent; or (3) suffer physical hardship that would result in illness or disease. Hardship would not exist solely because a prospective juror will be absent from employment.
Jury Service Reform: H.B. 13 (special session) (2004); Amended Miss. Code Ann. § 13-5-23.
Establishes a lengthy trial fund to compensate jurors up to $300 per day, starting on the eleventh day of service. In such circumstances, jurors who can show hardship may also receive compensation of up to $100 per day from the fourth through tenth days of service. Specifies circumstances under which jurors may be excused from service. Provides for penalties for those who fail to appear: fines up to $500 and/or three days imprisonment, or alternatively community service.
Requires all people to serve on juries unless they experience undue or extreme physical or financial hardship. Establishes a lengthy trial fund to compensate jurors up to $300 per juror, per day for trials lasting more than 10 days, starting on the eleventh day of trial. In such circumstances, jurors would also be eligible to retroactively collect up to $100 per day from the fourth day to the tenth day of service. The bill did not specify a financing mechanism, but tasked the Louisiana Supreme Court to develop recommendations for the Legislature to consider at some point in the future. Prohibits employers from dismissing or otherwise subjecting employees to any adverse employment action for responding to a jury service summons. Allows for one automatic postponement from service.
Juror Service Courts- H.B. 1153 (2011); C.R.S. 13-71-101- 13-71-133.
Requires each juror service summons to include instructions for retrieving jury service acknowledgment information. Allows jurors to be notified by telephone of date changes and requires juror service information to be available via internet for 12 months after time of juror service. Changes mandatory payment to jurors from weekly to within 10 days after service for trial jurors, and “at least on a monthly basis” for grand jurors.
Jury Service Reform: H.B. 1159 (2004); Amended C.R.S. 13-71-104.
Establishes stricter criteria for jurors to be excused from services.
Establishes stricter criteria for jurors to be excused from services. Provides protections for small business by allowing employees of small businesses to reschedule service if another employee from the same firm already is serving on a jury.
Allows jurors of lengthy trials to begin being paid at the higher rate on the first day of service, instead of the fourth day, if their employer does not compensate them.
Jury Service Reform: H.B. 2133 (2006); Amended A.R.S. § 21-222.
Modifies key provisions of ALEC’s Jury Patriotism Act that was adopted in 2003 to make jurors eligible to receive compensation from the lengthy trial fund (up to $300 per day) for those who serve on juries for more than five days. In such circumstances, jurors would then receive additional compensation beginning from the fourth day served.
Jury Service Reform: H.B. 2305 (2005); Amended A.R.S. § 21-202.
Amends criteria for prospective jurors to be excused from service by permitting a person who is at least 75 years of age to have the option to be temporarily or permanently excused from service. Provides that a judge or jury commissioner may temporarily excuse a prospective juror for good cause, such as a lack of transportation or absence from the jurisdiction. Includes technical changes to the statement required for verification of the medical need for an excuse due to a mental or physical condition that makes the prospective juror unfit for service.
Requires all people to serve on juries unless they experience undue or extreme physical or financial hardship. Establishes a lengthy trial fund from a modest filing fee to compensate jurors a minimum of $40 and a maximum of $300 per juror, per day for trials lasting more than 10 days, starting on the eleventh day of trial. In such circumstances, jurors would also be eligible to retroactively collect at least $40 but not more than $100 per day from the fourth day to the tenth day of service. Provides for employee protection by prohibiting an employer to require an employee to use annual or sick leave for the time spent in the jury service process. In addition, it prohibits employers to dismiss or in any other way penalize employees for responding to a jury service summons. Provides for protection of small business owners by requiring the court to postpone the service of an employee if another employee of that business is already serving on a jury. Allows for one automatic postponement from service. Provides for jurors to serve no more than one day unless selected to serve on a trial. Provides that a willful failure to appear for jury duty is a Class 3 misdemeanor.
In 1993, Arizona became one of the first states to initiate a major jury reform initiative when the Arizona Supreme Court established its Committee on the More Effective Use of Juries. The Committee adopted 55 recommendations. Fifteen of these recommendations resulted in immediate changes to the Supreme Court Rules. The implemented reforms primarily aim to increase juror comprehension and involvement in trials. These reforms include encouraging mini-opening statements prior to voir dire, giving jurors copies of jury instructions, providing juror notebooks, allowing jurors to ask questions, and allowing jurors to discuss the evidence among themselves during civil trials. Arizona’s reform is viewed as a model by other states. Arizona did not succeed, however, in implementing universal service recommendations such as expanding juror source lists, using follow-up procedures for non-respondents to jury service, carefully monitoring deferral or excuses from service, and revising statutory provisions for jury pay.
Jury Service Reform: SB 87 (special session) (2005).
Provided the right to one automatic postponement with the requirement that service be rescheduled within six months of the original summons. Protected small businesses (defined as having five or fewer full time employees) by requiring the court to postpone and reschedule the service of an employee of a small business if another employee of that employer is already serving. Limited the frequency of service to no more than once every two years. Prohibited an employer from taking any adverse employment action against an employee solely because the person serves on a jury. Clarified that employers may not require an employee to use annual, vacation, or sick leave time for the period in which he or she leaves. Set stricter for prospective jurors to be excused from service. Increased the maximum fine for contempt for failure to appear from $100 to $300.


IN THE MATTER OF N.L.
Present: Hadley, P.J., Poehler & D'Angelo, JJ.
Melanie S. Lewis for the respondent.
D'ANGELO, J. On March 29, 2017, a petition for commitment pursuant to G.L. c. 123, § 35 was filed by the respondent's father. After a hearing, an order of commitment was issued and the respondent appealed. We have considered this appeal and have determined that the order of commitment was not supported by clear and convincing evidence and must be vacated.
At the hearing on the petition, Dr. Alan Schonberger ("Schonberger"), a licensed psychologist and a designated forensic psychologist, was the only witness. Prior to testifying, the doctor interviewed the petitioner, spoke to the respondent's mother by telephone, and interviewed the respondent. Dr. Schonberger testified that the respondent's parents reported that their daughter was unemployed, was homeless, and was in a physically abusive relationship. The respondent's parents recently had only limited contact with her. The petitioner said he had not had any direct contact for approximately a month prior to the hearing. The respondent's mother indicated that over the past month, she had been in the respondent's presence only on the day prior to the hearing. However, the respondent's mother stated that she had received four telephone calls from the respondent in the past month. The mother told the doctor that the respondent had acknowledged over the telephone that she had a drug problem and said that she wanted help. The mother had also reported that in the course of the same day, the respondent had climbed a ladder to the second floor of the home and had been outside banging on the second-floor window, and had fallen down some stairs. It was unclear based on the testimony what the condition of the respondent was during this episode the day prior to the hearing.
drugs in her body. The respondent declined to sign a release, and the doctor could not verify any of this information with DCF.
Under G.L. c. 123, § 35, a petition for an order of commitment of a person believed to have a substance use disorder may be filed by a police officer, physician, spouse, blood relative, guardian, or court official in any division of the District Court or the Juvenile Court. Id. When the respondent appears in court, a qualified physician, psychologist, or social worker must examine her. Id. The hearing on the petition follows the examination, and it must include competent medical testimony and the petitioner may testify and introduce evidence. Id. If the judge finds, based on clear and convincing evidence, that (1) the respondent has a substance use disorder as defined in § 35, and (2) there is a "likelihood of serious harm" as a result of the respondent's substance use disorder, the judge may order the respondent committed to a suitable facility for a period not to exceed ninety days. Id.
Likelihood of serious harm may be established by a showing of: "(1) a substantial risk of serious physical harm to the respondent; (2) a substantial risk of serious physical harm to other persons; or (3) a very substantial risk of physical 'impairment or injury' to the respondent resulting from an inability to protect himself or herself in the community." Matter of G.P., 473 Mass. 112, 117 (2015), citing G.L. c. 123, § 1. The first prong requires a showing of "'evidence of, threats of, or attempts at, suicide or serious bodily harm' to the respondent." Id. at 125, quoting G.L. c. 123, § 1. The second prong requires "homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them." Id. at 126, quoting G.L. c. 123, § 1. The third prong requires a higher level of proof than the first two. "[A] 'very substantial' risk is not the same as a 'substantial' risk, and requires more certainty that the threatened harm will occur." Id. at 128. "[P]roof that the respondent is a chronic alcoholic or substance abuser, by itself, is insufficient to establish a very substantial risk." Id. Very substantial risk is "to be shown by evidence that (1) the respondent's judgment is so adversely affected by the abuse of alcohol or drugs that the respondent cannot protect himself or herself from physical harm, and (2) the respondent's community does not include any reasonably available external source of adequate protection." Id. at 128-129.
Also, to establish a likelihood of serious harm, a showing of imminence is required. See Matter of G.P., supra at 127, 129. A "petitioner must demonstrate a substantial and imminent risk of serious injury to the respondent or to others on account of the respondent's alcohol or substance abuse, or both." Id. at 127. When a court determines whether a substance use disorder presents a "very substantial risk" under the third prong of the statute, the imminence of the risk is a factor that is given greater consideration than with respect to the other two prongs. Id. at 129.
In this case, there was no evidence of threats of or attempts at suicide or serious bodily harm to the respondent. Therefore, a commitment order under the first prong was not supported by the evidence. Similarly, there was no evidence that established a substantial risk of serious physical harm to others under the second prong. Therefore, the issue to be determined on appeal is whether there was sufficient evidence to support a finding of a very substantial risk of physical impairment or injury to the respondent resulting from her inability to protect herself in the community.
We note, as we did in Matter of D.S., 2017 Mass. App. Div. 157, that there is no statutory requirement for a judge at a hearing pursuant to G.L. c. 123, § 35 to issue findings, written or otherwise. Id. at 159. The hearing judge could have relied on the testimony of Dr. Schonberger. The credibility and weight of the evidence are for the fact finder. Demoulas v. Demoulas, 428 Mass. 555, 565 (1998). How a hearing judge weighs the evidence and gauges the credibility of witnesses is entitled to deference by this Division. Custody of Eleanor, 414 Mass. 795, 800 (1993) (because trial judge has opportunity to observe witness demeanor and assess candor, appellate courts are especially reluctant to review trial judge's assessment of witness credibility). The only evidence presented at the hearing on this issue was the information the doctor learned from the respondent's mother and father. In summary, the judge who presided at the commitment hearing could have found that the respondent was homeless and unemployed; that she had a history of past opiate use; and that she had in the past month expressed to her mother a desire for some type of help regarding her drug use. The judge also could have found that on the day before the hearing, the respondent had climbed a ladder and had banged on a second-floor window, and that she had fallen down some stairs.
An order of commitment under G.L. c. 123, § 35 results in a substantial curtailment of liberty, and therefore, there must be evidence that the danger or risk of harm on account of the alcohol or substance abuse at issue was imminent and that the person's judgment is so affected that she is unable to protect herself in the community. See Matter of G.P., supra at 128. The fact that a respondent is a chronic alcoholic or substance abuser, by itself, is insufficient to establish a "very substantial risk" of harm under the third prong. Id. In the case at bar, the evidence was unclear as to when the respondent last abused drugs, and the only evidence of recent "risk" was the episode from the day before where the respondent tripped on some stairs.
[Note 1] Although the respondent's commitment order has ended, this appeal is not moot. The Supreme Judicial Court has recently stated, "Appeals from expired or terminated commitment . . . orders . . ., like appeals from expired harassment prevention orders (G.L. c. 258E) or expired abuse prevention orders (G.L. c. 209A), 'should not be dismissed as moot where the parties have a continuing interest in the case.' At the very least a person who has been wrongfully committed or treated involuntarily has 'a surviving interest in establishing that the orders were not lawfully issued'" (citations omitted). Matter of F.C., 479 Mass. 1029 (2018). The same analysis applies to G.L. c. 123, § 35 commitments.
[Note 2] Because we reverse the order of commitment on the sufficiency of the evidence, we do not need to reach other issues raised by the respondent.


text:
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During the past several decades, informed consent has become an established principle of health law as well as clinical ethics, so much so that it has been the subject of a presidential commission (President's Commission, 1982). The requirement that a physician obtain a patient's informed consent to medical treatment (Canterbury v. Spence, 1972; Natanson v. Kline, 1960) is based on a consensus that individuals have the right to control access to their own bodies and to make informed decisions about their own health and well-being decisions with which others might disagree and live or die with the consequences. Moreover, the courts have repeatedly affirmed that a person (even one who is hospitalized for mental illness, if competent) has the right to refuse any and all medical treatment (e.g., Rogers v. Commissioner of the Department of Mental Health, 1983), and the right of refusal is recognized to varying degrees in many state statutes and regulations.
Although statute and case law concerning the scope and application of informed consent and the right to refuse treatment vary from one jurisdiction to another (cf. the U.S. Supreme Court's declining to promulgate uniform national standards in Washington v. Harper, 1990), basic principles are generally consistent (Appelbaum & Gutheil, 1991; Bursztajn et al., 1991; Deaton et al., 1993; Schwartz, 1994). The right to give or withhold informed consent is held by competent adults. Parents or guardians must give informed consent for minors, and a legal guardian must be appointed to give informed consent to treat a person who is adjudged incompetent to consent.
Competence is not a global trait. Separate judicial determinations must be made as to whether a mental disability renders a person incompetent (for example) to manage his or her finances, to make a will, or to stand trial. When it comes to giving informed consent to medical treatment, the requisite elements of competence include an appreciation of the situation and its consequences, together with the capacity to understand relevant information, to process that information rationally, and to communicate one's choices to care providers (Appelbaum, 1997; Appelbaum & Grisso, 1988; Grisso & Appelbaum, 1995).
Besides competence, two other elements are necessary to informed consent: information and voluntariness. In order to make an informed decision, a person must be informed about the nature of the treatment offered, its risks and benefits (i.e., possible outcomes, including side effects, and their probability of occurrence), and possible alternative treatments. The risks and benefits of no treatment at all must also be considered. The requirement of voluntariness means that consent must be given freely, and cannot be coerced. While physical coercion clearly violates this stipulation, establishing that psychological or emotional coercion has occurred in a given case is a clinico-legal judgment on which expert opinions may differ.
Statutory and judicial exceptions to the informed-consent requirement mainly involve emergencies in which the need to act quickly overrides the need for consent (Rogers v. Commissioner of the Department of Mental Health, 1983). The right to informed consent may also be overridden or compromised when others are directly endangered by a person's decisions. It is often on the basis of such supposedly emergency considerations as determined by the provider, who frequently stretches this concept to the breaking point that treatment is imposed on drug users and alcoholics.
In clinical ethics, the duty to obtain informed consent can be derived from at least four major ethical principles: beneficence, non- maleficence, autonomy, and justice. Of these four, the principle of respect for autonomy is the most central to informed consent. Today, this principle of autonomy is often associated with, and bolstered by, that of authenticity. That is, not only should one be free from external coercion in making health-care decisions, but one should feel free to make decisions that truly express one's inner values and convictions, one's sense of who one is and what one stands for (Bursztajn & Brodsky, 1994; Peele & Brodsky, 1991).
This is a deeper, more active conception of informed consent than that common in years gone by. It means that clinicians support the patient in a process of self-discovery rather than simply give the patient a checklist to sign (Gutheil et al., 1984). At one time, "doing good" and "not doing harm" were typically conceived of in paternalistic terms, whereby the clinician's sense of good versus harm mattered more than the patient's. But such imposition of values would be out of keeping with the social priorities of recent decades.
In terms of addiction treatment, therefore, this modern conception of client-centered care imposes on the provider an obligation to actively encourage the expression of the individual's values. To say that this is rarely the case in drug and alcohol treatment is an understatement. Simply for a provider not to combat and suppress the individual's values would be a great improvement in most treatment settings. Several clinicians have outlined the differences between such a client-centered approach and that typically used in standard drug and alcohol treatment programs (Miller & Rollnick, 1991; Peele et al., 1991).
Source: Peele et al. (1991, p. 174).
In addition to its legal and ethical bases, informed consent should be a clinical imperative. A growing body of research shows the predictable result that patients participate more fully in treatment and experience better outcomes when they have the opportunity to choose a form of treatment they believe in. This has repeatedly been shown to hold true in the case of alcohol treatment. In particular, personal values and beliefs have been found to be critical in terms of whether people accept and succeed at abstinence or controlled drinking goals.
In terms of a client-centered approach to assessment and treatment, motivational interviewing and brief interventions (which follow similar principles) have been shown to be the most effective treatments overall (Miller et al., 1995). Moreover, since motivational interviewing and brief interventions respect individual choices and in fact build and rely on clients' efforts, these treatments are the most cost effective (by producing the best results at the least cost). Indeed, in the NIAAA's widely heralded Project MATCH (1997), which found all treatments to be equivalently effective under its highly structured research protocol, motivational enhancement had one-third as many scheduled sessions as the other two treatments (12-step facilitation and social skills training). In other words, motivational enhancement produced results as good as the other key therapies with a third the investment in treatment, even given that all therapies were administered under ideal conditions of therapy design and therapist training and supervision (Peele, 1998) (see Chapter 2).
With informed consent, clinicians need to recognize and respect patients' values and beliefs in particular, how they view the nature of their drinking problems (Heather et al., 1982). Indeed, research shows that an individual's "persuasion" as to what his or her drinking problem is and what outcome is most likely is a better predictor of outcomes viz. controlled drinking and abstinence than are objective measures of the severity of their alcohol dependence (Heather et al., 1983; Elal-Lawrence et al., 1986; Orford & Keddie, 1986). Beyond this, the exercise of autonomy can itself be therapeutic, promoting growth and responsibility (Booth et al., 1992; Miller, 1991; Sanchez- Craig & Lei, 1986; Sobell et al., 1992). By this empirical yardstick as well as on principle, clinicians who want to "do good" (beneficence) and "not do harm" (nonmaleficence) need to respect their patients' values, preferences, and decision-making autonomy.
A person who has been denied informed consent can seek administrative and legal remedies. One can report an alleged ethical violation to the state board of licensing or registration and to the national and state professional associations for the profession in question. Before doing so, it is prudent to read the ethics codes of those associations including, if applicable, those of a medical specialty field, such as psychiatry to formulate the precise wording of a complaint and to gauge how strongly the profession is likely to respond to such a complaint.
An example is provided in Appendix A of an ethics complaint submitted to the American Society of Addiction Medicine (ASAM, whose Principles of Medical Ethics are listed at its web site, http://www.asam.org). As that analysis shows, prominent members of the ASAM violate its stated ethical standards as a matter of course, without seeming to fear disciplinary action by this professional body. Thus, the best referral may be to the supervising physician's licensing body (usually a state medical board). As a last resort, a highly motivated individual may have to turn to the civil courts for redress. Professional referrals are also not available in the case of psychotherapists who do not belong to any regulated profession. In fact, the overwhelming bulk of assessment and treatment in addiction is conducted by counselors with certificates as addiction or alcoholism counselors (CACs), and referrals to their licensing bodies or governing boards may be of little use.
Under common law, unconsented touching during treatment is a form of battery, an intentional tort. Failure to obtain informed consent is an unintentional or negligent tort (Canterbury v. Spence, 1972; Natanson v. Kline, 1960). Notwithstanding the sensational cases in which patients are drugged and then violated, only a very small proportion of informed-consent cases reach the criminal courts. In civil law, informed consent is a cause of action separate and distinct from professional malpractice. In practice, however, it is not difficult to persuade a jury to view the absence of informed consent as part of a pattern of substandard care in a given case. Especially with non- routine procedures, properly obtaining informed consent has become part of the "standard of care" against which physicians' actions are measured in malpractice cases, and its denial a deviation from that standard (Bursztajn et al., 1997). Note that, when a case is brought against a physician on a theory of informed consent, the mere failure to obtain required informed consent is sufficient to establish liability. On the other hand, when failure to obtain informed consent is alleged as a deviation from the standard of care in a malpractice action, the same elements must be proved to sustain the claim as in any other malpractice case, i.e., a breach of the physician's duty of care that directly causes damage to the patient.
Standard of care is itself an evolving notion, as the old "community standards" of a locally oriented society have been supplanted by national standards for certified medical specialties (Restatement of Torts, 1965; Robbins v. Footer, 1977) and, in some cases, by an objective cost-benefit analysis (Helling v. Carey, 1974). But informed-consent laws actually came about in opposition to professional custom. Court decisions (Scaria v. St. Paul Fire and Marine Insurance Co., 1975; Zeleznik v. Jewish Chronic Disease Hospital, 1975) and even state legislation reaffirming professional custom as the standard of care in malpractice cases (Washington Revised Code, 1975) have generally upheld the patient's right to informed consent irrespective of customary professional practice.
The 1999 case of G. Douglas Talbott (Chapter 6), past President and a Board Member of ASAM, broke new legal ground in this regard. Talbott and associates were found liable for $1.3 million in actual damages and settled for an undisclosed amount in punitive damages. In this case, Talbott's physician treatment program coerced the client into alcoholism treatment through threats to his medical license, combined with a bogus diagnosis of alcohol dependence (which is typical for those who are assessed in alcohol treatment programs; cf. Sharkey, 1994). Talbott and a number of colleagues were found liable for fraud, malpractice, and a novel claim false imprisonment (Ursery, 1999b). The fraud judgment required a finding that errors in the diagnosis were intentional.
Talbott's and his colleagues' diagnosis of the plaintiff did not meet the standard of care. Moreover, in line with the trend noted above, in malpractice claims against substance abuse programs, informed consent could be cited (although it apparently was not in the Talbott case) as an essential and required element of care, and failure to gain full consent used as evidence of malpractice. As with an ethics complaint, however, a malpractice action cannot be brought against an unlicensed psychotherapist or most CACs, who have few or no professional standards to violate.
Given the widespread insistence in the U.S. that alcoholism and other addictions are diseases to be managed medically, one would expect that they would be dealt with like other medical conditions, according to established medical principles and procedures. For example, the scientific framework of medicine would require documentation of treatment efficacy and individualized treatment planning. Individualized planning would, in turn, indicate that therapeutic measures correspond to the severity of the condition. Thus, treatment of a person who is occasionally bingeing, particularly when the person is young, would be entirely different from treatment given to a chronic, middle-aged alcoholic. A parallel is often drawn by those seeking reforms in alcohol treatment to "step care" for cholesterolemia (see Institute of Medicine, 1990), in which mildly elevated cholesterol is dealt with through dietary recommendations, and more severe cases through increasingly potent medications. Analogously, in the case of alcohol problems, young people with incipient problems would be administered a "secondary prevention" program, emphasizing training to avoid binge situations and to drink moderately on social occasions (Marlatt et al., 1998).
Just as a genuine medical model of clinical treatment is based on differential diagnoses and graduated levels of intensity of care, the legal and ethical framework of medicine would require a patient's informed consent to treatment. Fully informed consent involves assenting, first, to any treatment at all, and, second, to a particular form of treatment. Yet, just as step care and secondary prevention programs are rarely considered in standard alcohol and drug programs, informed consent is likewise almost completely ignored.
These lacunae in the real world of addiction treatment in the U.S. occur due to the ideologically charged nature of drug and alcohol abuse/dependency. Here the legal and ethical tenets of the clinical professions, like their scientific foundations, are honored in the breach rather than the observance. Each year hundreds of thousands of people are routinely mandated into treatment by the courts or coerced by private employers (Brodsky & Peele, 1991; Weisner, 1990) (see Chapter 1). The vast majority of these are given no meaningful choice of treatment. Specifically, they are not informed about alternative treatments that have had better outcome records in clinical research (Miller et al., 1995). Issues of outpatient versus inpatient treatment are similarly decided based on what the program offers (and the patient's insurance coverage) rather than on proven efficacy (Miller & Hester, 1986).
This failure to implement a true medical model across the board has occurred in part because the prevailing model of addiction treatment in the U.S. is primarily rooted not in science but in religion, or in quasi-religious "spiritual" folklore. As such, its practitioners promote it and it has largely been accepted as received wisdom, not as an issue for empirical study. Although Alcoholics Anonymous and like-minded voluntary mutual-support fellowships disavow any coercive intent, many of those in clinical, administrative, and referring roles in public and private institutions are true believers in AA's 12-step model who see it as the only way to approach addictions problems, and who brook no opposition.
Moreover, although the disease model disclaims moralistic intent, substance abuse and addiction are often nonetheless seen in moral terms. This perception derives in part from actual risks of violence, accidents, and deteriorating health (which in a true medical model would be assessed case by case) and in part from an ingrained cultural prejudice against states of intoxication as ipso facto sinful and dangerous. Supposed addiction experts' views are highly colored by their personal experiences. A large majority would likely agree with G. Douglas Talbott, who declares: "The ultimate consequences for a drinking alcoholic are these three: he or she will end up in jail, in a hospital, or in a graveyard" (quoted in Wholey, 1984, p. 19 and a direct echo of the AA belief that alcoholics' only alternatives to AA are "jails, institutions, or death").
Based on such claims, treatment providers feel justified in applying any sort of pressure to coerce an "addict" into treatment. But in fact, many people overcome drinking and drug use problems on their own, without treatment (see Chapter 2).
The most intense types of coercion are interventions, in which the individual is surrounded by friends and family (and usually addictions professionals) who insist that he or she is out of control; such sessions normally end with the person being whisked off to a treatment center. To say that such interventions violate standard practices of informed consent is, once again, a serious understatement. Interventions employ practices that are quite similar to the kinds of group-think pressures that occur in cults and that amount to brainwashing (see Bufe, 1998; Gerstel, 1982; Lifton, 1969; Ragge, 1998). It is unthinkable that any form of therapy other than that for drug and alcohol abuse would utilize this as a treatment modality. Yet leading practitioners in the field (see Johnson, 1980) strongly endorse interventions. Indeed, in his book about the excesses of chemical dependency and other mental health treatment, Sharkey (1994) described how, in Texas, treatment centers actually employed private security guards to round up suspected substance abusers. Assuming that they were being arrested, these unsuspecting individuals were then deposited in for-profit hospitals. Eventually, prodded by state senator Frank Tejeda, Texas became the first state to crack down on some of the excesses involved in private psychiatric hospitalizations.
Substance abuse and dependency as well as alcohol abuse and dependency are defined as psychiatric disorders in DSM-IV. State laws provide that if a mentally ill person is to be deprived of the right to make personal choices including that of giving informed consent to treatment, a court hearing must be held to determine that the person is incompetent (cf. Kaimowitz v. Michigan Department of Mental Health, 1973). If the person is to be deprived of physical freedom through involuntary hospitalization, hearings must be held at specified intervals to determine that the person is dangerous to self or others. As a rule, even an involuntarily committed person is presumed competent unless a court rules otherwise (Bursztajn et al., 1991).
Why are these legal safeguards routinely overridden in consigning people en masse to addiction treatment? Two elements of the addiction ideology provide an explicit or implicit rationale for this legal bypass. First, loss of control is a defining element in the 12-step definition of addiction or dependence, although it is not in DSM-IV (see Chapter 1). Like other aspects of addiction as popularly conceived (which have in turn imprinted themselves on medicine and law) and as promoted by treatment providers, loss of control over one's behavior is seen in all-or-nothing terms as a dichotomy rather than a continuum. Moreover, this concept is applied quite loosely and inclusively, not only to addicted (or substance-dependent) persons, but also to many who would qualify for lesser diagnoses as mere substance abusers. Once any such person has been classified as having lost behavioral discretion, he or she will be claimed to be a danger to self or others.
Because of the prominence of denial in patients suffering from chemical dependence, treatment may be mandated or offered as an alternative to sanctions of some kind. In other circumstances, a chemically dependent person whose judgment is impaired by intoxication may be brought to treatment when unable to make a reasoned decision, or may be treated on an involuntary basis.
It is the duty of the addictionist to advocate on behalf of the patient's best interest and to prevent any abuse of this coercive element. The goal for patients is to restore, as quickly and safely as possible, their ability to make responsible decisions about their own recoveries.
However, in forensic psychiatry, even a person diagnosed with a psychosis can be found to retain decision-making capacity in some life functions (Appelbaum & Gutheil, 1991). By contrast, in the world of addiction services as actually practiced, being "in denial" about one's illness is assumed to render one incompetent to make decisions about that illness. This blanket, a priori determination is then employed as a substitute for a court hearing. Thus, the two criteria applied in mental health law to deprive a person of normal personal liberties and prerogatives namely, dangerousness and incompetence are routinely ignored in favor of the principles of loss of control and denial. In this way, standard treatments for substance abuse in the U.S. circumvent informed consent.
Among the interesting aspects of the ASAM ethics code is that it says nothing about whether a particular type of treatment may be mandated or refused. This is because, essentially, the ASAM reckons that there is only one possible type of treatment for substance abuse.
In other areas of the ASAM Principles, vacuous assertions are made that in fact are regularly violated. The Principles specify that the patient is to be treated with respect, "regardless of possible conflicts in values between patient and physician." Furthermore, the physician has a duty to uphold patient rights while working in an inter- disciplinary team and "should not delegate to any nonmedical person any matter requiring the exercise of professional medical judgment." This element of the code is routinely disregarded through the reliance of treatment programs on alcoholism and addiction counselors who are themselves AA members preoccupied with their own recovery. As an example, G. Douglas Talbott and "many physicians on the Talbott team are recovering alcoholics" (Sibley, 1999).
Addictionists should treat individuals only with their consent, except in emergency and extraordinary circumstances in which the patient cannot give consent and in which the withholding of treatment would have permanent and significant consequences for life and health. In cases where the patient has been found to be incompetent by appropriate mental health professionals and/or by the judicial system, physicians may assist in their care.
It is difficult to reconcile this statement either with some of those made elsewhere in the Principles or with actual practice. In Chapter 6, we review the case of G. Douglas Talbott. Talbott, Past President and board member of ASAM (along with a number of professional colleagues) seemingly violated, without compunction, informed consent and other of what ASAM claims to be its ethical principles. There is additional irony in that Talbott's program is for "impaired" physicians and other health professionals, and that he is co-author of the definitive chapter in ASAM's Principles of Addiction Medicine concerning treatment of such professionals (Angres et al., 1998).
The best hope of reconciling practice in this area of medicine and therapy with the more broadly accepted (and legally enforced) standards of the medical profession may lie in the ASAM ethics claim that addictionists "carry the responsibility to be aware of the laws that govern both their professional practice and everyday lives and to respect and obey these laws." If those supposedly bound by ASAM's Principles took this guidance seriously in regard to the laws on informed consent, we would see an end to the special status of addiction treatment as a de facto exception to those laws.
ACKNOWLEDGMENTS: The authors are indebted to Harold J. Bursztajn, M.D., and Thomas G. Gutheil, M.D., for essential background information about informed consent in mental health treatment.

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