I’ve been practicing law for 12 years. I worked at a very tiny firm right out of law school and did not do a lot of litigation. On the rare occasion we needed to redact something, it happened with a Sharpie or, if we were feeling fancy, with a pair of scissors. Software existed, of course, but it was expensive and for what we did, unnecessary.
Now, however, redaction typically happens with software. I learned quickly that there is a difference between actually redacting something and just plunking a black box over something you don’t want other people to see. The problem is, not everyone has learned that lesson.
Today, it was revealed by CNN that federal prosecutors have more information on Rudy Giuliani than they had previously disclosed. CNN figured this out by copying redacted portions of a document filed in federal court by an attorney for Giuliani associate Lev Parnas, and pasting them into another document, where the redactions magically disappeared. Oops.
There are a couple of interrelated ethical problems here—if this is information that the client did not consent to disclose, it’s a pretty clear Rule 1.6(c) violation. The Rule requires attorneys to take reasonable steps to protect the confidentiality of information; proper redaction is a reasonable step. If the court, by order, statute, or rule, required redaction, it is a violation of that order, statute, or rule, and could be a violation of 8.4 (states vary widely on this—Wisconsin’s SCR 20:8.4 deems it misconduct to violate a state statute, case law, or Supreme Court order or rule regulating the conduct of lawyers; the Model Rule does not, but does prohibit engagement in conduct that is prejudicial to the administration of justice).
At its heart, however, this is a Rule 1.1 problem—the duty of competence. Speaking practically, if you’re going to use software to redact documents you need to know how to use it properly. You need to understand the risks and benefits of the technology (see Comment 8) and make an informed decision as to whether you’re going to use it. And, frankly, if you’re redacting anything more than the occasional social security number, the software when used properly will be far more effective and economical for your clients (and less crampy for your hands).
Note: Even the Sharpie method may not be all that effective these days—modern scanners and software may be able to differentiate between the Sharpie and the text below. We got away with it more than a decade ago, but you may not be able to now.
This is not the first example of high-profile redaction gone wrong, and I’m sure it won’t be the last. It may be a boon for journalists, but it’s a problem for lawyers, albeit one that should be easy to solve with proper training.
On a related note, journalists are not subject to the Model Rules and can employ the copy-and-paste tactic (or really any other tactic that is otherwise legal and doesn’t violate their own ethical codes) and, barring a protective order, they can use the information as they see fit. Attorneys, however, have obligations under Model Rule 4.4, which requires lawyers who come into possession of material relating to representation that they believe was inadvertently sent to notify the sender. (Wisconsin’s SCR 20:4.4 also requires this notification, but additionally requires attorneys who inadvertently receive material protected by attorney-client privilege or the work product rule to notify the sender, stop reviewing or using the material, and abide by the sender’s wishes until a court determines what should happen to the information.)
So what does this mean, if an opposing party files a document with unsuccessful redactions? The Rule does not require you as the recipient to test the redactions, but if you are like me and poke around with a cursor when you’re reading for no good reason and you end up highlighting what should be absent text underneath what appears to be a black box, that is likely inadvertently sent information. The comments to the Model Rules are not specific to this scenario and I did not find any cases based on my admittedly quick search, but it seems to fit. In that case, you would be obligated to notify the sender. Both the Wisconsin and Model Rule are silent as to what you can do with non-privileged information that was inadvertently disclosed—whether you can use that information or ignore it or delete it is a matter of professional judgment and potentially court order.