Illusory Ethics: Legal Barriers to an Ombudsman's Compliance with Accepted Ethical Standards

Pepperdine Dispute Resolution Law Journal Volume 8 | Issue 1 Article 4 12-1-2007 Illusory Ethics: Legal Barriers to an Ombudsman's Compliance with Accepted Ethical Standards Scott C. Van Soye Follow this and additional works at: https://digitalcommons.pepperdine.edu/drlj Part of the Courts Commons, Dispute Resolution and Arbitration Commons, Legal Ethics and Professional Responsibility Commons, and the Legal Profession Commons Recommended Citation Scott C. Van Soye, Illusory Ethics: Legal Barriers to an Ombudsman's Compliance with Accepted Ethical Standards, 8 Pepp. Disp. Resol. L.J. Iss. 1 (2007) Available at: https://digitalcommons.pepperdine.edu/drlj/vol8/iss1/4 This Article is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Dispute Resolution Law Journal by an authorized editor of Pepperdine Digital Commons. For more information, please contact , . Van Soye: Illusory Ethics: Legal Barriers to an Ombudsman's Compliance with [Vol. 8: 1, 2007] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL Illusory Ethics: Legal Barriers to an Ombudsman's Compliance with Accepted Ethical Standards By Scott C. Van Soyel Americans don't trust their governments. A 1997 survey of urban Philadelphia residents by the Pew Research Center for the People and the Press showed that ninety percent of respondents didn't trust government at any level.' This is disturbing because citizens with low trust in government are generally less law-abiding than their trusting counterparts.2 Furthermore, they feel less able to affect events in their community, and are less likely to engage in civic affairs. 3 Such feelings are not confined to a particular political party, community, or administration. The Philadelphia study's authors indicate that their results mirror those across the nation. 4 Similar attitudes of distrust and skepticism toward government have persisted since the Vietnam War, with the exception of a brief period of strong support for the Bush administration after the attack on the World Trade Center.5 While some scholars argue that Scott C. Van Soye is a 1988 graduate of the UCLA School of Law. He is also a member of the Class of 2007 at Pepperdine's Straus Institute for Dispute Resolution. He actively litigated in California courts from 1988-1998, and served as Judicial Staff Counsel to the judges of the San Bernardino Superior Court from 1998-2006, advising them on literally thousands of civil cases. He now uses this broad experience as a principal in Pacific Coast Dispute Resolution, which provides mediation, arbitration, and reference services to those involved in civil disputes at the trial and appellate level. 1. PEW RESEARCH CENTER FOR THE PEOPLE AND THE PRESS, TRUST AND CITIZEN ENGAGEMENT IN METROPOLITAN PHILADELPHIA: A CASE STUDY (1997), http://peoplepress.org/reports/display.php3?ReportlD=l 10, (last visited Oct. 18, 2007). 2. Timothy E. Cook & Paul Gronke, The Skeptical American: Revisiting the Meanings of Trust in Government and Confidence in Institutions, 67 J. POL. 784, 785 n.1 (2005). 3. Cook & Gronke, supra note 2, at 786 n.l. 4. PEW RESEARCH CENTER, supra note 1. 5. PEW RESEARCH CENTER FOR THE PEOPLE AND THE PRESS, PUBLIC OPINION SIX MONTHS LATER: NATIONHOOD, INTERNATIONALISM LIFTED (2002), http://people-press.org/commentary// display.php3?AnalysislD=44 (last visited Oct. 19, 2007). Published by Pepperdine Digital Commons, 2007 1 Pepperdine Dispute Resolution Law Journal, Vol. 8, Iss. 1 [2007], Art. 4 this data shows merely skepticism and not active distrust, 6 the net result is the same - dissatisfaction with the government, and a belief that it must be monitored. 7 The situation in the private sector is similar. An ABC News poll found that in the face of repeated corporate scandals, only 11% of Americans trust corporate executives, 8 and only 18% trust even published corporate financial statements. 9 One method of combating such beliefs is the introduction of an ombudsman,' 0 or "citizen's defender,"" into the governmental 12 or corporate13 system. An "ombudsman" is a person who receives complaints about improprieties and systemic problems within his defined jurisdiction and investigates or otherwise addresses these issues independently and impartially. 14 There are five general types of ombudsmen: classical, executive, corporate, educational, and newspaper. 5 The first two types are appointed by governmental entities, 16 while the last three are associated with private organizations. " 6. Cook & Gronke, supra note 2, at 800-01. 7. Id. at 784. 8. Stephen Ruckman, A Matter of Expression: How Trusted Communication Leads to Trusted Boards, CORP. GOVERNANCE, Oct. 2004, at 25, 33 n. 1. 9. Ruckman, supra note 8, at n.3. 10. The term ombudsman is used here in a gender-neutral sense. The author recognizes the valuable contributions of women to this field. In using the male form neutrally, the author follows the lead of other writers in this area. See e.g. SAM ZAGORIA, THE OMBUDSMAN: How GOOD GOVERNMENTS HANDLE CITIZENS' COMPLAINTS 3 (1988). This is also the practice followed by the International Ombudsman Association (IOA) on its website. International Ombudsman Association, http://www.ombudsassociation.org/ (last visited Oct. 18, 2007). It is also expressly adopted by the United States Ombudsman Association (USOA) in its standards. UNITED STATES OMBUDSMAN ASSOCIATION, GOVERNMENT OMBUDSMAN STANDARDS I n. 1 (2003), http://www.usombudsman.org/documents/PDF/References/USOASTANDARDS.pdf. 11. Alfred Bexelius, The Origin, Nature, and Functions of the Civil and Military Ombudsmen in Sweden, 377 ANNALS AM. ACAD. POL. & SOC. SCI. 10 (1968). 12. Id. 13. See Ruckman, supra note 8, at n.3. 14. See Christine M. Kuta, Comment, Universities, Corporations,And States Use Them-Now it's Time to Protect Them: An Analysis of the Public and Private Sector Ombudsman and the ContinuedNeed Fora PrivilegedRelationship,27 S.ILL. U. L. J. 389, 393 (2003). 15. See infra notes 23-83 and accompanying text. 16. ZAGORIA, supra note 10, at 37-38. Zagoria also refers to a "citizen" ombudsman on pp. 38-40, appointed by a commission but funded by the government. Id. at 38-40. However, he does not discuss to whom the citizen ombudsman reports, what authority he or she has, or under what circumstances he or she can be dismissed. Id. Therefore, it is unclear whether this type is functionally distinguishable from those already named. 17. See infra notes 62 (educational ombudsmen), 71-72 (organizational ombudsman), and 79 (newspaper ombudsmen). 118 https://digitalcommons.pepperdine.edu/drlj/vol8/iss1/4 2 Van Soye: Illusory Ethics: Legal Barriers to an Ombudsman's Compliance with [Vol. 8: 1, 2007] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL The American Bar Association has identified a sixth type of ombudsman, the advocate, whose responsibility it is to protect a vulnerable population, such as childr (...truncated)