By Gary Blankenship
A proposal that attorneys should indemnify clerks of court if the attorneys fail to identify confidential information, which is then accidentally made public, has been referred to the Bar’s Rules of Judicial Administration Committee.
The proposal was made by the Florida Court Clerks & Comptrollers to the Florida Courts Technology Commission. The FCTC acted May 14 during a broader discussion about court public records being available over the Internet and lawyer responsibilities for identifying confidential information in documents they electronically file.
The indemnification issue was raised in an April 21 letter from FCCC President Joseph E. Smith to Supreme Court Clerk John Tomasino. In it, Smith noted that clerks are required by a Supreme Court administrative order and Rule of Judicial Administration 2.420(a) to make courts records electronically available to the public, attorneys, and parties.
“In order to comply with this order, clerks ask that the responsibility of attorneys to comply with Rule 2.515 [which deals with attorneys’ signatures and certificates on filed documents] be clarified and expanded,” Smith wrote. “This clarification and expansion should note that attorneys shall indemnify clerks for the subsequent release of confidential information by the clerk, due to error or omission of the attorney in failing to properly protect such information.”
The proposal would amend Fla. R. Jud. Admin. 2.515(a)(4) to provide that when an attorney signs a document that is to be filed, including by electronic signature, “the attorney agrees to indemnify the clerk of court for damages for any inadvertent release by the clerk of confidential information contained in the document that was not: (i) minimized by the attorney as required by Rule 2.425, or (ii) specifically identified by the attorney pursuant to the notice requirements of Rule 2.420(d)(2), or (iii) not specifically identified by the attorney in a motion filed pursuant to the procedures set forth in Rule 2.420 subdivisions (e), (f) or (g) . . . .”
Rules 2.420 and 2.425 govern the submission and protection of sensitive information to the court, and the duties of attorneys and clerks in handling such information. Discussion at the FCTC meeting focused on the problem of many attorneys not understanding the two rules and how they work together.
FCTC member Murray Silverstein, who chairs the Rules of Judicial Administration Committee, said the committee would address the FCCC letter when it meets June 26 at the Bar’s Annual Convention.
“It’s a very important concern because it appears lawyers in many instances are not performing their duty to redact information under Rule 2.425,” Silverstein said after the FCTC meeting. “Unfortunately what results is clerks are being required to perform lawyers’ duty for redaction and in exchange for that they’re asking lawyers to indemnify them from any release of confidential information.
“It’s an issue that needs to be addressed,” he added. “If indemnification through a procedural rule of court is not the best remedy, there’s no question that some form of statutory immunity needs to be provided.”
The FCTC ratified the recommendation of its Access Governance Board that the issue be referred to the RJA Committee with a recommendation to give it fast-track consideration.
The issue has special import as most of the 67 clerks of court around Florida are working to provide online access to court records starting this summer.
FCTC members discussed problems with protecting confidential information. Judge Martin Bidwill said many lawyers don’t understand how Rules 2.420 and 2.425 work and relate to each other.
Silverstein said many lawyers only look at Rule 2.420, which identifies information clerks must keep confidential and requires filers to submit a form with the filer identifying such information. They tend to ignore, he said, Rule 2.245, which specifies the format for filing sensitive information and delineates what sensitive information should not be filed at all, thinking erroneously that will be handled by clerks under 2.420.
Justice Ricky Polston, liaison from the Supreme Court to the FCTC, said lawyers need to be familiar with, and comply with both rules.
“I see nothing that waives the responsibility of lawyers in the rules. There may be some overlap [between lawyers’ and clerks’ duties under the rules], but it doesn’t mean the lawyers’ responsibility is alleviated,” he said.
Silverstein and other commission members recommended an article published in the May Bar Journal, titled “Litigation Practitioners’ Confusion: Fla. R. Jud. Admin. 2.420 and 2.425 and the Improper Filing of Sensitive Information.” They said the article explains the interplay between the two rules and how lawyers must meet the requirements of both rules.