by James S. Wilber, Esq., Altman Weil, Inc.
Most law departments periodically use written or online surveys to gauge the satisfaction of clients with the services they (and outside counsel) provide. A question that often arises is whether (and if so, how) to protect the confidentiality of the responses that come from the executives and other key users of legal services served by the law department?
The responses of clients to survey questions, and most especially the narrative comments that they provide, are of immense value to the general counsel and the law department in determining how to improve services and ensure the complete satisfaction of their clients. Although the tabulated results of the survey and the narrative comments are very helpful for these purposes even when the client responses are confidential and the law department cannot tell from whence they came, many general counsel prefer being able to follow up directly with individual clients to discuss their ideas and concerns. That of course isn’t possible if the names of the respondents are confidential. The competing factor is getting clients to be candid, something that is much more likely if the survey is confidential.
The best way to handle the issue of confidentiality versus candor is to promise confidentiality at the beginning of the survey but then ask the respondent to waive confidentiality at the end. Our experience is that participants usually are less concerned with keeping their responses confidential once they’ve actually provided them.
Therefore, at the beginning of the survey, make it clear that the identity and the responses of participants are confidential and will be unknown to the law department and all who work there.
To make the confidentiality promise real, the survey needs to be administered and tabulated by a third party – either an outside consultant or another group within the company that will conduct the survey for the law department.
At the very end of the survey, i.e., after the respondent has answered the questions and knows what was asked and how he or she responded, ask the client for a waiver of the confidentiality promised at the beginning. Clients are much more willing to waive confidentiality after they have completed the survey than before they know what questions will be asked and what their responses will be.
Make it clear that there is nothing wrong with the client refusing to waive confidentiality if that is the choice.
The final question should ask respondents whether they wish to have the responses remain confidential or whether they are willing to waive confidentiality and allow their individual questionnaires to be turned over to the general counsel.
Language we usually use to frame the final question is as follows: “Unless you waive confidentiality, Altman Weil requests your name for the sole purpose of tracking participation. The Law Department will see only tabulated results. Narrative remarks will be commingled without attribution. Your individual responses will remain confidential.”
Finally, at the very beginning of the survey it is important to define what is meant by the promise of confidentiality. Here is what we tell the clients of the law departments we help with client surveys: “To obtain candid responses to the survey, the source of any answer or comments will not be disclosed to the law department. Altman Weil will tabulate the questionnaires and report the tabulated responses as part of this study, but remarks will not be attributed to any individual. The only way in which the identity of a respondent might be discovered is if he or she words a comment in such a way that the source is obvious. Again, the source of your individual responses will be kept in strictest confidence.”