May a Missouri lawyer redact pleading information when there is a good-faith but uncertain basis for believing redaction law protects it?

Plain-English summary

The lawyer had complied with the known redaction requirements but was uncertain about one item in a pleading. The lawyer had a good-faith legal basis for believing the information was protected and asked whether it could be redacted for the court to decide.

The opinion answers yes, provided Rule 4-3.1's nonfrivolous-claim standard is met. That standard includes a good-faith argument for extension, modification, or reversal of existing law.

On that basis, the redaction also complies with Rule 4-3.4(c)'s requirement to follow tribunal rules. When the information concerns an opposing party, witness, or other person, Rule 4-4.4(a) separately requires respect for that person's rights.

The opinion does not determine whether the information is legally protected or interpret the underlying redaction rules and statutes, because those legal questions fall outside the scope of an informal opinion.

In practice

Under this opinion, uncertainty about whether a specific item is protected does not forbid redaction. The ethical boundary is a nonfrivolous factual or legal basis, while the court retains the legal determination about the redaction requirement.

Common questions

Q: May the lawyer redact an item whose protected status is uncertain?

A: Yes, if the lawyer has a nonfrivolous basis in fact or law for the redaction.

Q: Does a good-faith argument to change existing law qualify?

A: Yes. Rule 4-3.1 expressly includes a good-faith argument for extension, modification, or reversal of existing law.

Q: What duties apply when the information concerns a third person?

A: Rule 4-4.4(a) requires the lawyer to respect the rights of an opposing party, witness, or other third person.

Q: Does the opinion decide whether the information is legally subject to redaction?

A: No. It leaves interpretation of the separate court rules, statutes, and other law outside its scope.

Background and rules framework

Rule 4-3.1 supplies the nonfrivolous-basis standard. Rule 4-3.4(c) requires compliance with tribunal rules, and Rule 4-4.4(a) and Comment [1] protect third persons' legal rights.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-3.1 (meritorious claims and contentions)
• Missouri Rule 4-3.4(c) (compliance with tribunal rules)
• Missouri Rule 4-4.4(a) and Comment [1] (rights of third persons)

Other opinions cited:

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

See also

• Missouri Informal Op. 2024-09: PDF Redaction and Staff Supervision
• Missouri Informal Op. 2024-10: Redaction Failure and Reporting
• Missouri Informal Op. 2024-07: Over-Redaction and Competence

Source

• Landing page: Missouri Informal Opinion 2024-08

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.” Lawyer has complied with the redaction requirements but is unsure as to whether a certain piece of information contained in the pleading is required to be redacted. Lawyer has a good faith basis in law to believe that information is protected by law and subject to redaction. Lawyer asks if Lawyer may ethically redact the piece of information in question and let the court make a determination as to whether Lawyer is correct.

Answer: Yes, Lawyer may ethically redact a piece of information Lawyer has a good faith basis of fact or law to believe is subject to the redaction requirements. In doing so, Lawyer must ensure that Lawyer meets the standards of 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[,]” as to why such information is subject to the redaction requirements. If Lawyer does so, Lawyer will fulfill the obligation of Rule 4–3.4(c) on compliance with rules of a tribunal, as well as Rule 4–4.4(a) addressing a lawyer’s responsibility in representing a client to respect the rights of third persons if the information in question relates to an opposing party, witness, or other third person. See also Rule 4–4.4(a), Comment [1] and Informal Opinion 2021–13.

It is important to note that 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.