This proposal would amend Rule of Procedure Rule 5.4 to add definitions of “Confidential Information” and “Confidential Proceeding;" Rule 5.40 to add subsections (B)-(E) describing how to handle confidential information and the redaction process; Rule 5.9 to add that matters determined by the court to be confidential will not be publicly available to non-parties; and Rule 5.10 to add that requests under the Americans with Disabilities Act are confidential matters.
Deadline: March 15, 2019
The State Bar currently has no Rules of Procedure that require parties to protect confidential information in documents filed with the State Bar Court. In order to balance the State Bar’s desire for transparency with the proper protection of confidential information, the proposed rule additions and changes were drafted. The rule changes state that confidential information that is not necessary should be omitted, and that such information that is necessary shall be redacted or the document filed under seal.
As the administrative arm of the California Supreme Court in matters relating to the admission, discipline and regulation of attorneys, the State Bar’s duty to assist the Supreme Court and to protect the public includes the duty, among other things, to inform the public about the work of the State Bar, about the right of all persons to make complaints against attorneys and about the nature and procedures of the discipline system. Further, Business and Professions Code §6086.1, states that all disciplinary proceeding hearings and records shall be public, unless otherwise designated.
The records and court hearings relating to proceedings before the State Bar Court against California attorneys generally become public upon the filing of the notice of disciplinary charges (“NDC”) or other initial pleading. Some proceedings or information obtained in the disciplinary process are deemed confidential by rule, and so those records are not available to non-parties. However specific types of private or confidential information (such as financial information, personally identifying information of non-parties and medical information (including mental health and substance abuse) also needs to be protected from public disclosure.
State and federal privacy laws restrict the dissemination of personally identifiable information, such as social security numbers, dates of birth, minor children’s names and protected private financial and medical information. The Board of Trustees and the Executive Director have received regular complaints from people that their confidential information (such as non-parties’ names and home location, minor children’s information, financial and medical information) is posted on the bar’s website. Some of these people are respondents, but others are complaining witnesses, attorneys, family members or victims. This information is generally contained in Notice of Disciplinary Charges, stipulations or mitigation evidence offered by respondents. These complaints are based upon the relatively limited number of documents that the court currently posts on the attorney’s profile page.
Shortly after the State Bar’s new Case Management System (CMS) goes live, the State Bar Court portal will be made available to the public. All documents filed in a case (except sealed documents), will be available for viewing via the internet. CMS does have the ability to allow the court to restrict access to confidential documents or proceedings so the public cannot see them. But unless the proceeding or document is not already designated as confidential in the rules, the court cannot redact information or conceal it even if private information is included. The proposed new rules will alert parties to the need to protect certain information, and provide a method for protecting it if the information is necessary to the matter before the court. It also provides transparency as the rules clearly define what matters and documents will not be available to non-parties.
Rule 5.4 (Definitions)
New Rule 5.4 (57) defines “Confidential Information” as both sensitive personally identifiable information and personal financial information.It specifies that such information should be redacted in any document meant to become part of the court record, unless accompanied by a motion to seal or is filed in a confidential proceeding.
New Rule 5.4 (58) defines “Confidential Proceeding” as any proceeding so defined by rule or statute as being confidential, and states clearly that such proceedings will not appear on the State Bar Court’s publicly accessible portal or docket.
Rule 5.40 (General Rules of Pleadings)
Rule 5.40 was amended to add subsections (B), (C) (D) and (E). (B) states that documents should not include confidential information unless that information is relevant and necessary.(C) states that if confidential Information is included it must be redacted or the document must be accompanied with a motion to seal.In order to ensure that parties are given full information (D) requires that unredacted copies of the document be provided to all other parties and the court. New (E) places the responsibility for excluding or redacting confidential information on the party filing the document.This has become standard practice in most courts as the court should not be the party identifying and protecting information.
Rule 5.9 (Public Nature of State Bar Court Proceedings)
Rule 5.9 is amended to add that matters determined by the court to be confidential will not be publicly available to non-parties.
Rule 5.10 (Confidential Proceedings)
Rule 5.10 is amended to add requests under the Americans with Disabilities Act as confidential matters as required by federal law.
Regulation and Discipline Committee Agenda Item
Regulation and Discipline Committee
March 15, 2019
Antonia G. DarlingChief Court Counsel/Chief Court AdministratorState Bar Court180 Howard St.San Francisco, CA 94105Phone: 415-538-2233Fax: 415-538-2090Email: firstname.lastname@example.org