Page 40 - November 2019 BarJournal

COLUMNETHICS PERSEPECTIVE

WHY SIMPLE HUMAN ERROR

MAY RESULT IN COMPLICATED

CONSEQUENCES

THE INADVERTENT DISCLOSURE OF CONFIDENTIAL
AND/OR PERSONALLY-IDENTIFYING INFORMATION

By Kate Pruchnicki & Jay Milano

hen submitting an financial nature. Probate litigation often involves A violation of a court order can lead to an
electronic case filing to allegations of mental incompetence and/or action for contempt — and a contempt finding,
the Cuyahoga County the inability to handle one’s personal assets under certain circumstances, can be sustained
Common Pleas e-filing — implicating financial, medical, personal despite the issue of intent. In any event, a
W portal, the system information, etc. finding of contempt can carry serious direct and
makes you check a box to verify the document In sum, the importance of this consideration collateral consequences — both personally and
complies with Rule 45’s provisions governing cannot be overstated to any particular type professionally.
the filing of documents containing personally- of attorney licensed to practice in Ohio — Depending on the circumstances, an
identifying information. the rules implicated by the disclosure of inadvertent disclosure could be found to violate
This checkbox routinely forces me to personally-identifying information could the Ohio Rules of Professional Conduct on
reconsider the material within, or attached to, potentially be violated (albeit inadvertently, in a broader scale than Rule 45, as the “type” of
our court filings — was the client’s SSN redacted most cases) by any of us. harmful disclosure is not limited by definition
from that Institutional Summary Report? Did Rule 45(D) of the Rules of Superintendence — and if proven against you, the violation could
I accidentally use the full name of that alleged for Ohio Courts requires the party filing any result in possible sanctions.
minor victim? Are there un-redacted medical document to “omit personal identifiers from the Rule 1.1 requires us to provide competent
records still attached to that expert report? document” by filing a separate, specified (and representation to our clients, and competent
If the e-filing portal did not regularly sealed) form detailing the nature of the informa- representation requires (among other things)
compel me to consider this, I am sure there are tion omitted. Sup. Rule 45(D)(3) makes clear that the “thoroughness [] reasonably necessary for
times I would forget — inadvertent disclosure the responsibility for omitting personal identi- the client.” Similarly, Rule 1.3 requires attorneys
is oftentimes simple human error. But it is fiers rests with the “filing party” — the attorney to act with reasonable diligence in representing
possible this simple human error could equate who signs off. a client. Comment [2] reinforces both Rules
to an ethical violation and/or a violation of court Sup. Rule 44(H) defines “personal identifiers” 1.1 and 1.3 by requiring a lawyer to “control
orders that require Ohio attorneys to exercise as: “social security numbers, except for the last [his/her] work load so that each matter can be
special care when filing documents with sensitive four digits; financial account numbers, including handled competently.”
information relative to clients and/or third but not limited to debit card, charge card, and For example, a situation in which one
parties. credit card numbers; employer and employee is accused of not exercising the level of
Consider the harm. In certain circum- identification numbers; and a juvenile’s name in thoroughness reasonably necessary for the client
stances, the harm caused by inadvertent disclo- an abuse, neglect, or dependency case, except based upon the disclosure(s) of sensitive and/or
sure could be significant — especially within the for the juvenile’s initials or a generic abbreviation confidential information as to their own client
area of criminal defense given the involvement such as “CV” for “child victim.” through an inadvertent document filing. This
of alleged victims, the sensitive facts underlying Many courts codify Rule 45(D) in their Local particular hypothetical also implicates the issue
sexual offenses, the frequent relevance of medical Rules of Court and/or administrative orders. of whether inadvertent disclosure would waive
records, etc. All divisions of the Cuyahoga County Court the attorney-client privilege.
But the risk is inherent to every other practice of Common Pleas — criminal, civil, domestic Rule 1.6 prohibits the disclosure of
area as well — for instance, commercial litigation relations, probate, and juvenile — have adopted information “relating to the representation of
commonly involves sensitive information Rule 45(D) as either a Local Rule of Court or a a client, including information protected by
about company operations, often of a sensitive standing Administrative Order. the attorney-client privilege under applicable
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