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Secrecy in judicial proceedings emerged as an issue across a broad front last year, raising questions about the proper use of confidential settlements and the legality of cases completely concealed from public scrutiny. Cases were uncovered in Florida and Connecticut that weren’t even docketed. One is under review by the U.S. Supreme Court. Thousands of Connecticut cases were sealed with only the parties’ names disclosed. In New Jersey, a case already under wraps featured a court decision that was itself immediately sealed so tightly that the lawyers weren’t allowed to show it to their clients. The legal community seems riven by the issue. Even among lawyers who are convinced that there’s a problem, proposed solutions diverge wildly. Others are equally convinced that, without confidentiality, far fewer cases would settle and already clogged dockets would be further backlogged. Many lawyers on both sides agree on one thing: The landscape has changed. Judges, they say, are far less likely to sign off automatically on confidential settlements, even when the parties consent, than they were a few years ago. There’s no way to know how often court documents are sealed, and how often cases are settled with confidentiality agreements. The topic was hot in the 1990s, when five states, led by Florida and Texas, passed “sunshine” laws to counter judicial secrecy. Subsequent efforts in statehouses have mostly stalled. And, as critics point out, these laws don’t prevent parties from asking judges to dismiss their cases so they can settle privately. The 7th U.S. Circuit Court of Appeals has taken a prominent role in this area, insisting that courts avoid blanket protective orders that cover all discovery materials, including those entered into evidence. With a few narrow exceptions, the judges warned, all documents that reach them are public, even those sealed by lower courts [NLJ, 4-28-03]. In South Carolina Interest in the subject has received a tremendous boost from two initiatives in South Carolina. Last May, the state Supreme Court adopted a rule that prevents parties from negotiating court-approved confidentiality agreements as a condition for settling cases. That step was inspired by South Carolina’s federal district court, which, in November 2002, promulgated a rule that prohibits all such settlements. So far it is the only federal court to do so. The new rule was greeted by an avalanche of publicity. A host of approving editorials appeared. So did articles by lawyers critical of the enforced openness. In a symposium in Columbia, S.C., last October, 10 lawyers addressed the issues. Among them was the district court’s chief judge, Joseph Anderson, who first proposed the rule change. The participants had prepared drafts of articles on this subject that will be published in May in the South Carolina Law Review. In his article and in a telephone interview, Anderson explained his thinking and identified mistakes that he and other judges have made sealing court records. Early in his article he clarified a point largely overlooked. The rule says, “No settlement filed with the court shall be sealed pursuant to” the rule. But the district’s 10 judges are still free to sign confidential settlements by invoking another rule: “[F]or good cause shown in a particular case, the court may suspend or modify any local rule.” The rule the judges adopted differed from the one Anderson originally proposed, which he still prefers, he said. It said: “No documents (including court orders) may be sealed in this district, if the documents contain information concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.” His colleagues, Anderson said in the interview, were concerned that they would be forced to define terms like “public safety” and therefore chose a broader policy. Anderson thinks being a judge requires interpretations of this sort. But he never considered opposing the measure adopted, he said, especially since the “safety valve” provision left them discretion. “I wanted to see us adopt something,” he said. In the law review article, he argues that secret settlements are much more common than people realize. They’re difficult to count because there’s no standard procedure for labeling or indexing them. Even if they’re rare, he wrote, the cases sealed are often the very ones that ought to be public. He doesn’t object to withholding trade secrets, divorce records or even settlement amounts “to minimize the possibility of frivolous copy cat suits,” he wrote. “But when a letter surfaces during discovery wherein a manufacturer is asked, ‘[W]hat is going on? Do we have to have a fatality before any action is taken on this subject?’ What justification can be given for a judge ordering that this letter be filed under seal with the court?” The internal quotation, the judge explains in a footnote, is from a letter placed under a protective order in a Bridgestone/Firestone tire case. Protective orders and secret settlements in tire cases, in child sexual abuse cases involving Catholic priests and in medical malpractice suits, convinced Anderson that something had to be done. In his article, he doesn’t shy from pointing the finger at himself. As a judge with six months’ experience, he acceded to a demand that he seal a settlement in which 350 plaintiffs claimed they were injured when PCBs were dumped in a lake ( Whitfield v. Sangamo Weston, No. 6:84-3184). He now regrets that. Typically, Anderson said in the interview, parties pressure judges by telling them that settlements will dissolve without confidentiality, placing judges and their bulging dockets under enormous pressure. Yet in the year following the rule change, his district court actually tried two fewer cases. Since the change, he’s been asked to seal records 15 times, he said. He did so once on a temporary basis. No cases failed to settle as a result. No one interviewed (including Anderson) thought that the South Carolina rule was perfect, but even critics praised it for prompting discussion. “My sense is that judges are much more leery of their sealing orders than they ever were before,” said Arthur Miller, a Harvard law professor. “And if they aren’t, this surely is a subject for judicial education.” Miller wrote an influential article defending sealed orders in 1991 (105 Harv. L. Rev. 427). The evidence that purports to prove the need for new rules against secrecy still strikes him as anecdotal and unconvincing, he said. “No one has ever proved that anyone has died,” he said. “I guess I’m still waiting for the tidal wave of horror stories that never seem to materialize.” He doesn’t know enough about the tire cases to address them, he said. “We shouldn’t be making policy in terms of taking weight off judicial shoulders,” he continued, referring to Anderson’s remarks about the pressure on judges. “That’s why they have appointments for life,” he said, referring to the federal bench. “They’re not running a sausage factory. To me, one of the great mistakes is to believe that disposition of cases at the earliest moment is the highest virtue.” Defense lawyer Stephen Darling, who participated in the South Carolina symposium, said the debate on this issue was “fueled by the press and the idea of the press wanting to publish everything”-an opinion echoed by lawyers on all sides. He said he understands why the tire cases led so many lawyers to weigh in and thinks it’s good that they did. “The thinking behind it is fine. The reaction is an overreaction, with all due respect to the court,” said Darling, a partner in the Charleston, S.C., office of Columbia’s Haynsworth Sinkler Boyd. “I’ve not seen an effect on the way people practice law nor on the way people handle cases.” Richard Harpootlian, a Columbia solo practitioner who mostly represents plaintiffs, isn’t sure how much his practice will be affected. “I think it’s going to make it tougher to settle cases,” he said. And he expects recoveries will be smaller. “There’s a value to the defendant not having the settlement revealed,” he said. The rule is a hindrance to his getting the best result for his client, he said, but is good for the state and public. That’s the conflict that Jean Toal, chief justice of the state’s Supreme Court, aimed to address with her court’s rule. In the state courts, parties may now move to have a case sealed, but the settlement must be approved before the court will entertain arguments for sealing it. When the settlement is contingent on confidentiality, Toal said in an interview, judges can be placed in the awkward position of simultaneously trying to do right by the parties and the public-even when the two conflict. These are the pressures she was trying to address, not the pressure to move cases, she said. Unhooking settlements and secrecy, she concluded, was the way to do it. Harpootlian agreed with her approach. But the rules left him wondering what will happen if a client settles a claim and then enters into a secrecy contract with the defendant that’s technically not part of the case. If it’s breached, will a court decide that it’s against public policy? “If a court can’t seal the record,” he asked, “can private parties do it?” Stephen Gillers, a New York University law professor, said he objects to secret settlements when secrecy endangers the public. In a 2002 law review article, he argued against contracts for secrecy, saying that “when made for the purpose of denying others information that could support civil or criminal liability,” they “obstruct justice under federal law.” (31 Hofstra L. Rev. 1) We have the laws, he said in an interview. “What we lack is the will to enforce them.” Richard Epstein, a law professor at the University of Chicago, asked why, if public health and safety are at risk, lawyers should be allowed to tie up information in litigation. Why not require them to report it immediately? “If you have doctors who are required to report abuse and neglect to public authorities, why not lawyers?” he asked. Yet another approach was advocated by Richard Zitrin, director of the University of San Francisco’s Center for Applied Legal Ethics, who also participated in the South Carolina symposium. An ethics proposal Zitrin, who has written widely on this subject, proposed a new ethics rule. It would bar a lawyer from helping parties to a dispute write an agreement that would restrict the dissemination of information the lawyer believes will directly affect public health or safety. It would cover all agreements, even private ones (after cases are dismissed), he said. As for enforcement, he argued: “If you have a rule, most lawyers will follow it.” Zitrin professed confidence that ultimately the rules will change. “This is an issue in which safety to the public will prevail,” he said. “And the reason is there is really no coalesced opposition to secrecy that will make itself known in a public forum.” Hechler’s e-mail address is [email protected]. An accompanying story is at www.nlj.com.

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