May a Missouri lawyer redact an entire pleading after the caption instead of determining what the court's redaction rules require?

Plain-English summary

The lawyer proposed redacting everything after the caption because there was not enough time to determine what the redaction requirements covered. The opinion rejects blanket redaction as a substitute for learning and applying those requirements.

Rule 4-1.1 makes understanding the applicable redaction law and Case.net's filing and security settings part of competent representation. Rule 4-3.4(c) separately prohibits knowingly disobeying tribunal rules unless the lawyer openly refuses based on an assertion that no valid obligation exists.

Rule 4-4.4(a) requires attention to the rights of an opposing party, witness, or other third person whose protected information might otherwise enter a public filing. That duty does not justify redacting everything. Unless Rule 4-3.1 supplies a nonfrivolous factual or legal basis, blanket redaction would violate Rule 4-3.4(c) and Rule 4-1.1.

The opinion also concludes that the proposal would violate Rule 4-8.4(a) by violating or attempting to violate the professional-conduct rules and Rule 4-8.4(d) as conduct prejudicial to the administration of justice. It does not interpret the separate redaction law, which is outside the opinion's scope.

In practice

Under this opinion, both under-redaction and indiscriminate over-redaction can create professional-conduct problems. The lawyer must determine the actual requirements, use the e-filing system competently, protect third-person rights, and ground any disputed redaction in Rule 4-3.1.

Common questions

Q: May the lawyer redact all pleading text to avoid a possible disclosure?

A: No. The opinion rejects that approach as inconsistent with competence and compliance with tribunal rules.

Q: What technological knowledge does Rule 4-1.1 require here?

A: Understanding Case.net, selecting the proper document type and security setting, and knowing how to apply the redaction requirements.

Q: Do third-person privacy concerns justify blanket redaction?

A: No. Rule 4-4.4(a) protects third-person rights, but the opinion says that concern does not permit disregarding the redaction rules.

Q: When can a disputed redaction be made?

A: When Rule 4-3.1 supports it with a nonfrivolous factual or legal basis, including a good-faith argument to change existing law.

Q: What misconduct provisions did the opinion apply?

A: Rule 4-8.4(a), for violating or attempting to violate the rules, and Rule 4-8.4(d), for conduct prejudicial to the administration of justice.

Background and rules framework

Rule 4-1.1 supplies the competence duty; Rules 4-3.1 and 4-3.4(c) govern the basis for redaction and tribunal-rule compliance. Rule 4-4.4(a) protects third persons, and Rules 4-8.4(a) and (d) address rule violations and prejudice to the administration of justice.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-1.1 (competence)
• Missouri Rules 4-3.1 and 4-3.4(c), Comment [4] (meritorious positions and tribunal rules)
• Missouri Rule 4-4.4(a) and Comment [1] (rights of third persons)
• Missouri Rules 4-8.4(a) and (d) (misconduct)

Other opinions cited:

• Missouri Informal Opinion 2021-13: information concerning third persons

See also

• Missouri Informal Op. 2024-08: Good-Faith Redaction
• Missouri Informal Op. 2024-09: PDF Redaction and Staff Supervision
• Missouri Informal Op. 2024-10: Redaction Failure and Reporting

Source

• Landing page: Missouri Informal Opinion 2024-07

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Question: Lawyer is getting ready to file a pleading, but Lawyer is unsure what to redact as required by Missouri Supreme Court Operating Rule 2.02, related Missouri Supreme Court Rules, and Missouri statutes, or other law, hereinafter referred to collectively as “redaction requirements.” May Lawyer simply redact the text of the pleading after the caption to ensure compliance? Lawyer states that Lawyer does not have time to determine what needs to be redacted, and Lawyer does not want to run afoul of the redaction requirements. Lawyer states that Lawyer thinks that redacting everything is the safest way to comply.

Answer: No, Lawyer may not simply redact the text of the pleading after the caption to ensure compliance because Rule 4–1.1 on competence requires Lawyer to take steps to determine how to appropriately comply with the redaction requirements. Pursuant to Rule 5.30(c), this office may only provide informal opinions regarding a lawyer’s prospective conduct pursuant to Rules 4, 5, and 6. This office cannot interpret other Rules or law, including the redaction requirements, nor can it provide legal advice. However, compliance with the redaction requirements is certainly part of a lawyer’s responsibilities pursuant to Rule 4, the Missouri Rules of Professional Conduct.

Rule 4–3.4 provides that “[a] lawyer shall not:…(c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists….” Comment [4] to Rule 4–3.4 states that “[l]awyers have an ethical duty to comply with court orders in both their professional and personal capacities.” The redaction requirements are Rules of the Court which must be followed by lawyers. Further, Rule 4–4.4(a), requires a lawyer in representing a client to respect the rights of third persons, so Lawyer must also consider if the information in question relates to a third person, such as an opposing party or witness, and whether that information will “embarrass, delay, or burden a third person or use methods of obtaining evidence that violate the legal rights of such a person.” See also Rule 4–4.4(a), Comment [1] and Informal Opinion 2021–13. If Lawyer puts information regarding an opposing party, witness, or third person that should be redacted into a public filing, Lawyer may violate Rule 4–4.4(a), but that is certainly not a justification for disregarding the redaction rules by simply redacting everything. Unless Lawyer has a meritorious claim or contention in accordance with Rule 4–3.1, meaning that Lawyer has “a basis in law or fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law[,]” Lawyer would violate Rule 4–3.4(c) by simply failing to attempt to comply with the redaction requirements. Lawyer would also violate Rule 4–1.1 by failing to comply with the competency requirements of representing a client. As part of a duty of competency to represent a client pursuant to Rule 4–1.1, Lawyer should understand how to use Missouri’s e-filing system, Case.net, including proper selection of the type of document being filed and the security setting for that document. Additionally, Lawyer should understand what is required to be redacted as a matter of law as part of the duty of competence pursuant to Rule 4–1.1. Finally, Lawyer’s proposed conduct would also violate Rule 4–8.4(a) by violating or attempting to violate the Rules of Professional Conduct, and Rule 4–8.4(d) by engaging in conduct prejudicial to the administration of justice.