Privacy must be protected in a world of changing communication.
What are a lawyer’s ethical obligations, if any, concerning sealing court records or appellate court decisions?
In this age of transparency, combined with the all-intrusive and never-forgetting Internet, lawyers have to be alert to protect the privacy of their clients and the integrity of the court system. A seminar was held May 14 in the Commonwealth Court, chaired by President Judge Dan Pellegrini, raising issues of concern, particularly whether an opinion should be published or not.
The program was monitored by Dan Schuckers, the former prothonotary of the Commonwealth Court. Current prothonotaries Kristen Brown of the Commonwealth Court and Karen Bramblett of the Superior Court participated as speakers.
Sensitive information contained in court opinions clearly raised serious concerns. Full names, particularly of minors or sexual-assault victims, should be redacted in briefs and opinions. Basic financial information in a domestic case or an unemployment compensation case could be of concern if revealed in a published opinion. Now, with the courts even publishing memorandum decisions, the concerns of privacy are becoming serious, as all information might become available to the general public.
All attorneys must discuss with their clients the issue of protecting at least certain aspects of a client’s right to privacy. Under Rule of Professional Conduct 1.2 on scope of representation, privacy concerns, particularly in custody, domestic, unemployment compensation or business cases, must be considered. Every attorney knows that once information gets on the Internet, it is almost impossible to get rid of it.
Any attorney who has ever received professional, public attorney discipline knows the information is not only on the Disciplinary Board’s website, but is on a number of websites and is there forever. Lawyers who were suspended or disbarred 20 or 30 years ago will still have their misconduct appear near the top of an Internet search of that attorney, even if the attorney has been reinstated and done very well in the interim time period.
There are concerns as to who is going to have the responsibility for protecting the privacy of the litigants. The burden of redaction can be tremendous. For instance, the law prevents using the name of sexual-assault victims in briefs, but the reproduced record normally has the person’s full name and address. It is a tremendous burden for a lawyer to have to redact the entire reproduced record. Many lawyers who do appellate cases are sole practitioners and/or court-appointed counsel. Who is going to pay for the redactions the privacy concerns may require? Perhaps with electronic filing there will no longer be the need for a reproduced record, because all court documents can be accessed online.
New Jersey courts are limiting access. Subscribers have to read the data from a screen, but there is no provision to facilitate downloading the data to a remote subscriber’s screen. Actual text or images of file documents are not available. One has to be a subscriber for access to material and there is a fee for remote access.
In New Jersey, it appears the records are available but difficult to access and expensive. In New Jersey, all of the information is considered proprietary to the judiciary. The subscriber has to agree that he or she will take all reasonable steps necessary to protect the judiciary’s right to restricted usage.
The current concerns about openness and court records are a symptom of the transitional changes taking place in the practice of law generally and how documents are filed and courts are run. These changes are occurring rapidly and many times well ahead of the ethical obligations and rules needed to protect and guide the legal profession and the judiciary during this time of transition.
Major transitional times are very difficult for the legal profession. Anyone who has studied the American legal system knows that the time period from about 1885 to 1920 was a tremendous transitional time when the days of sole practitioners and law clerks and writing everything out transitioned to major firms and specialization. Perhaps a study of that time period could provide some guidance to the changes modern technology is bringing.
The judiciary, particularly the Pennsylvania Supreme Court, must take a leading role in directing these changes, including how court records are going to be received and whether they are going to be protected. But these all go hand-in-hand with what is going to be the nature of the legal profession as it also rapidly changes over the next 10 or 15 years. There must be some guidance and direction and often that comes through serious revisions of the Rules of Professional Conduct. But these changes cannot just be driven by wealthy and large firms. There are still substantial small firms and sole practitioners, particularly outside the urban areas in Pennsylvania, and they should have a voice in these changes. Many small firms feel these changes are too expensive and coming too quickly.
As electronic filing starts to be utilized in various counties throughout Pennsylvania, many lawyers feel great frustration that there is no unified electronic filing system. Every county has its own system and own passwords. The Pennsylvania Supreme Court needs to step in and develop a unified system where one would check off in which county to file the documents.
Not to do that could create a system where lawyers find it too difficult to practice in counties other than their own. If that were to occur, it would take the legal profession back to 1968, when lawyers were only allowed to practice in their own counties, unless they had a local counsel in another county.
If there are going to be 67 electronic systems, many of which would then be subdivided into civil electronic systems, criminal electronic systems, orphans’ court electronic systems and more, it could be beyond the capacity of a small firm or sole practitioner to register in all these counties. Many firms do not have IT people on staff.
The judiciary has to recognize that the legal profession is grossly overburdened with financial needs and concerns. The solution over the last 20 or 30 years has been to throw additional burdens onto the legal profession. But the legal profession can’t handle that anymore. Many law firms are struggling mightily, particularly sole practitioners in small firms, because of the greatly increased size of the legal profession and serious financial conditions that have affected clients’ ability to pay legal fees.
The bottom line is that changes in electronic filing and/or protections of privacy rights cannot occur on an ad hoc basis. This must be viewed systematically and perhaps in the context of what is expected from the future of the practice of law.
The right of privacy, which was developed after Samuel Warren complained about newspaper coverage of his daughter’s wedding and resulted in the famous law review article by him and his law partner, Louis Brandeis, in 1890, has changed. If there was ever the need for a right to privacy, it is now. Privacy seems to be totally impossible to maintain, unless one lives in a cave and forgoes any form of electronic communication.
But all lawyers now have ethical obligations to protect their clients. This may mean asking for an opinion not to be published. It may mean a lawyer should forgo asking for a memorandum opinion to be published, even though it might have some interesting points on a change of law. This may mean lawyers have to petition the court to seal records. This may mean there won’t be as much openness in the legal system or there must be great restrictions to make it difficult for someone who is just curious to obtain these records.
But where is the line to be drawn? It is time that the Pennsylvania Supreme Court and the legal profession start to work on these issues. Privacy has to be protected. But this cannot be done in a vacuum. These changes and rules have to be put in the context of where the bench and the bar are heading in this rapidly changing world of almost instantaneous and gross overcommunication.
Attorneys should warn clients against borrowing money pretrial.
My client has gone to a lending group to borrow money pending the resolution of a personal injury lawsuit. I told the client not to, but they have. What are my responsibilities as a lawyer?
Unfortunately, there is a whole practice of these lending organizations that seek out personal injury clients to lend them money. It is almost predatory lending. Any lawyer who has been involved has seen how a $3,000 loan can become $8,000 or $9,000 in a very short time period.
It is not in the client’s interest to borrow money from these lending companies. Every lawyer should advise their clients as such. If a client insists, the client has the right to enter into a lending contract. But these organizations usually want the lawyer to sign something to protect the lender’s interests. If the lawyer doesn’t sign, there often will be no loan to the client. If the lawyer won’t sign, at times the client will take the file to another lawyer who will sign the loan document.
In any event, whether the lawyer signs or not, the lawyer has an obligation once there is a settlement to ensure that the money due the loan company is either paid out of the settlement sheet or, if there is a dispute, maintained in an interest-bearing escrow account until the dispute has been resolved. Obviously, if the lawyer signs something, the lawyer has a personal guarantee and must do so. If the lawyer has not signed anything, then the lawyer has to do so because the lawyer is holding disputed funds between a third party and the client. Under Rule of Professional Conduct 1.15, the lawyer cannot resolve that dispute but must hold the funds in escrow pending the resolution. If the resolution is going to be more than a few weeks, then the money has to be taken out of the non-interest-bearing IOLTA account and put in an interest-bearing escrow account.
This is the same situation as when a lawyer gives a letter of protection to a doctor who forgoes collecting medical fees. If the lawyer doesn’t give a letter of protection but is aware that the doctor has outstanding bills and costs, the lawyer then has to hold the money pending the resolution between the client and the doctor. The days of the client asking for the money to pay the doctor or loan company are gone.
If a lawyer wants to comply with the client’s wishes and gives the client the money, then the lawyer may well be personally responsible to pay. Any lawyer who does personal injury work knows that it is a rare client who has any money left from the settlement a few months later.
It does appear there is a need for some more regulation of these loans, particularly in terms of the rather substantial interest rates. Perhaps the Rules of Professional Conduct should address this situation.
Clients are allowed to borrow money from these lending companies. They cannot borrow money from the lawyer and lawyers are prohibited from making advances, except on a very limited basis, as set forth under Rule 1.8. But the wisdom of these pre-settlement loans is questionable. Often, they place the client in a deep economic bind. Although it is understandable the client wants some quick money, it would be better for the client to think this through and the lawyer should urge the client not to engage in these kinds of loans. Any lawyer should advise in writing the client who wishes to do this. But if the client insists, the lawyer still does not have to sign the documents.
Finally, every lawyer should know that if these loans aren’t paid or if the lawyer gives the money to the client, these lending companies have no qualms about going to the Office of Disciplinary Counsel, which is then faced with a situation that reeks of potential conversion or failure to maintain funds in the escrow account pending the dispute. It is usually coupled with a lawyer not responding to the loan company or misleading it. That can be a recipe for suspension if a lawyer is not careful.
Until there is some reform or rules governing this, every lawyer should very carefully and very firmly advise clients not to borrow money before settlement or trial unless the client is under the most extreme of economic circumstances. Even then, the better practice is not to borrow.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.