Ray Ohler,
I was surprised at your comment that you could not get an answer from PA as to your question. I have never had a problem getting an answer. I did have one prosecutor tell me that they get as many as 10,000 complaints, questions, etc., per year so they do not always answer questions that are found elsewhere, such as the USPAP. In this case, I think the State Board should have provided an answer and I will raise that issue with them at the meeting on Thursday. In the meantime, I submitted the question and thne following is the answer I received from a Prosecutor with the B. P. O. A.
"Well, all this is wrapped up in SMT-5 ( page 78, lines 3624-3630 of USPAP 2000) where it specifically states that disclosure to enforcement agencies, even absent client permission, does not result in a violation of the confidentiality provision.
Even absent SMT-5's specific statement, the way I would interpret it (and how I suspect the rest of the prosecution staff sees it) is that there are several historic confidential relationships which go back hundreds of years (attorney/client, doctor/patient, priest/penitent, husband/wife) and where generally there is very few circumstances where disclosure can be required or where improper disclosure cannot be punished. Most of the rest of the
confidential relationships are statutory (accountant/client, reporter/informant appraiser/client) and information is given only the protection authorized by law. These statutory confidential relationships give much more opportunity for information serving the public good to be disclosed. Therefore looking at the Confidentiality Provision and interpreting it with that in mind, I would say, even absent SMT-5's statement, the Confidentiality Provision explicitly allows disclosure without client permission. Specifically the confidentiality provision provides "An appraiser must not disclose confidential information or assignment results prepared for a client to anyone other than: )1) the client and persons specifically authorized by the client; 2) state enforcement agencies and such third parties as may be authorized by due
process of law, and 3) [appraisal peer review committees]" There are three general rules of statutory construction which would b e applicable to this case and which basically every administrative/legislative body says it holds to; therefore I believe they would apply just as equally to the USPAP -- (a) the enacting body intends for all of the provisions of the enactment to be
given weight and meaning, (b) the provisions of an enactment should not be interpreted to have an absurd or unreasonable result, and © unless otherwise specified, the enactment is to be interpreted to favor the public interest instead of any private interest. The first and second construction rules are obviously the strongest in this case -- if the client's permission is always required to disclose, no matter what, then there would be no reason to go on to specify that the assignment results can be turned over to
other classes of individuals/groups. You would either have client
permission or not -- end of story. So, the only way to give weight and meaning to the rest of the confidentiality provision and to not end up with an absurd enactment (i.e. lines of text which have no bearing on the subject at all) is to say that permission from the client is needed, or it can be given to an enforcement agency without the client's permission, or the information can be given to a peer review committee. Looking at the third rule of construction (public interest trumps private interest) also supports the concept that it can be turned over without client permission -- while there may be some harm to the client by turning the documentation over to an enforcement agency, the harm to the public by allowing an
unethical/unqualified individual to continue practicing is greater. "
I hope this is a satisfactory answer.
Red
