Editor's note: This article first appeared in New Jersey Lawyer, the NJSBA's award-winning bi-monthly magazine. To check out the magazine archives visit here.
By Ryan J. Gaffney, Esq.
District VI Ethics Committee member
Of counsel to Chasan Lamparello Mallon & Cappuzzo, PC
Last year forced us all to expand our work-from-home skills. ECourts filings increasingly fell not to assistants and associates but to the senior attorneys that drafted them. The basic rules on these filings have not changed since the pandemic, but attorneys of any experience level should be familiar with what they are communicating to the Court.
Several system-generated certifications are required in every electronic submission through the civil and criminal eCourts systems. One such certification included not once—but twice—is that the filing attorney has redacted certain confidential information. Specifically, the New Jersey Court Rules require the redaction of “confidential personal identifiers” in all court filings [R. 1:38-7(a)]. The account and identification numbers subject to redaction include social security, driver’s license, insurance policy, license plate, and active financial or credit card information. Military status is also a protected identifier.
Something as obvious as a social security number may jump out as requiring removal, but exhibits with other information deemed confidential under the Rules are commonly used in motions and other applications to the court. A motor vehicle accident report, for example, includes the driver’s license number, insurance policy number, and license plate number for all drivers involved. Employment records and routine billing documents also usually contain financial account information that can be overlooked.
If an unredacted confidential identifier is filed on eCourts, it cannot be removed with a simple call to the court [R. 1:38-7(g)(3)]. Indeed, the Court Rules mandate that a request to redact confidential information come by motion or order to show cause [R. 1:38-7(g)(1)]. The time and expense associated with such an application, not to mention the multiple certifications discussed above, underline the court’s view on the importance of protecting this information.
While the Court Rules prohibit filing of all confidential personal identifiers [R. 1:38-7(b)], its purpose recalls a related standard—limited only to a client’s information—under the Rules of Professional Conduct [R.P.C. 1.6.]. A lawyer must make “reasonable efforts” to prevent disclosure of, and must “act competently” to safeguard, confidential information including electronically stored information [Official Comment to R.P.C. 1.6(f)]. With the greater experience in electronic filing by most attorneys, the standard for “reasonableness” in preventing disclosure of confidential information is unquestionably higher than it was at the start of the pandemic.