By Joanna L. Storey, Hassard Bonnington
Think of that moment when someone else’s mistake becomes your problem. For example, opposing counsel inadvertently attaches a confidential settlement agreement between his client and yours to a declaration filed in an unrelated matter. You know how it happens – the settlement agreement comes out of a shared printer behind the intended exhibit, and it gets attached to the declaration. Yes, a motion to remove the confidential agreement from the court’s file likely will be successful, but the bell has rung. Anyone who reviewed that file in the meantime, saw how much your client paid to his adversary.
This type of mistake happens more often than you would think. I vividly recall a judge chastising an attorney in open court because the attorney filed a declaration inadvertently including names, social security numbers, and other sensitive information about many non-parties. The information was buried in the middle of an intended exhibit that apparently no one bothered to review before the declaration was filed. The error resulted in an order that the careless law firm provide notification to each non-party listed in the document that the information had been compromised.
Rules of Professional Conduct, Rule 3-110 (A) provides, “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” The word “competence” with respect to this rule includes the diligence, learning and skill reasonably necessary for the performance of such service. California Ethics Opinion 2015-193 states: “An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law.”
In a time when court records are online and easily accessible to the public, we must be mindful of the content of the exhibits we file, not only because of redaction rules (e.g., social security numbers, financial account numbers, and the like), but also to protect the client’s non-legal interests. That key exhibit you think will establish a foolproof defense may also contain unrelated sensitive information that, while not confidential or a trade secret, may be something your client would prefer to not see on the front page of the paper or on social media. Consider using a different exhibit that establishes the same facts or carefully redacting unrelated information that the court does not need to decide the motion. Use redaction software that removes metadata so a tech savvy opponent cannot find hidden information.
The competence rule also includes the duty to supervise the work of subordinate attorneys, non-attorney employees, or agents. While staff may assemble the documents and physically perform redactions, attorneys should personally check all exhibits page by page to ensure the exhibits do not contain sensitive information. Above all else, plan ahead so you have ample time to double check exhibits to prevent careless mistakes that could have long-lasting ramifications.
Joanna Storey is senior counsel at Hassard Bonnington where her litigation practice includes professional liability, medical device, pharmaceutical, catastrophic personal injury and complex commercial matters. Storey actively follows privacy, security and ethics developments and is a member of BASF’s Legal Ethics Committee.