What must a Missouri lawyer do when opposing counsel files the lawyer's client's personal information without required redactions?

Plain-English summary

Opposing counsel filed a pleading containing the plaintiff's personal information without redactions required by court operating rules, other court rules, statutes, or law. Although the plaintiff's lawyer did not file the pleading, Rule 4-1.6 gave that lawyer an interest in preserving the client's confidential information.

The opinion directs the lawyer to tell the client what information was disclosed and what protective steps may be available, then follow court procedures addressing e-filing mistakes or insufficient redaction. It declines to interpret the separate redaction requirements because informal opinions address prospective conduct under the professional-conduct rules, not other rules or law.

Rule 4-8.3(a) requires a report only if the lawyer knows that opposing counsel violated the professional-conduct rules and the violation raises a substantial question about honesty, trustworthiness, or fitness. Rule 4-1.0(f) defines knowledge as actual knowledge that may be inferred from circumstances. The seriousness and surrounding facts inform the substantial-question assessment, which the opinion leaves to the reporting lawyer's independent professional judgment.

Rule 4-8.3(c) makes the reporting duty subject to client confidentiality. If the report cannot be made without disclosing Rule 4-1.6 information and the plaintiff refuses consent, the lawyer may not report opposing counsel.

In practice

Under this opinion, protecting the client and deciding whether opposing counsel must be reported are separate duties. Client protection and communication follow from Rules 4-1.6 and 4-1.4; reporting requires the higher Rule 4-8.3 test and remains limited by confidentiality.

Common questions

Q: Must the client's lawyer act even though opposing counsel filed the pleading?

A: Yes. The opinion directs the lawyer to seek protection of the client's personal information and follow the court's procedures for filing or redaction mistakes.

Q: What must the lawyer tell the client?

A: The nature of the personal information disclosed and the steps that may be taken to protect it.

Q: Does every redaction failure require a disciplinary report?

A: No. The lawyer must have actual knowledge of a professional-conduct violation that raises a substantial question about opposing counsel's honesty, trustworthiness, or fitness.

Q: Who decides whether that reporting standard is met?

A: The opinion leaves the determination to the lawyer's independent professional judgment after considering the seriousness, facts, and circumstances.

Q: May the report reveal confidential client information without consent?

A: No. If the report cannot be made without protected information and the client does not consent, Rule 4-8.3(c) prevents the report.

Background and rules framework

Rules 4-1.6 and 4-1.4 govern protection of confidential information and communication with the client. Rules 4-8.3(a) and (c), read with Rule 4-1.0(f), establish the knowledge, seriousness, recipient, and confidentiality conditions for reporting. Rule 4-8.4 identifies conduct that may constitute professional misconduct.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.6 and 4-1.4 (confidentiality and communication)
• Missouri Rules 4-8.3(a) and (c), Comment [3] (reporting and confidentiality)
• Missouri Rule 4-1.0(f) (actual knowledge)
• Missouri Rule 4-8.4 (professional misconduct)

Other opinions cited:

• Missouri Informal Opinions 2021-08, 2019-02, 2018-07, 2011-04, 20060074, 20050051, 20010039, 20000132, and 950165

See also

• Wisconsin Ethics Op. EF-26-01: Reporting Lawyer or Judge Misconduct
• Louisiana Ethics Op. 06-RPCC-010: Reporting Lawyer Misconduct
• Virginia Ethics Op. 217: Reporting Misconduct and Client Confidence

Source

• Landing page: Missouri Informal Opinion 2024-10

Original opinion text

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

Question: Lawyer A represents Plaintiff, and Lawyer B represents Defendant. Lawyer B has filed a pleading on behalf of Defendant containing personal information of Plaintiff that should be protected and subject to redaction 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 A asks if there is an obligation to raise this issue with the court to seek to protect Plaintiff’s personal information. Lawyer A also asks whether there is a duty to report Lawyer B to the Office of Chief Disciplinary Counsel?

Answer: Lawyer A should seek to preserve Plaintiff’s personal information which may be subject to the redaction requirements even though Lawyer A did not file the pleading containing such information. Lawyer A has an interest per Rule 4–1.6 in maintaining Plaintiff’s client confidential information and should communicate with Plaintiff regarding the nature of the personal information that was disclosed and steps that may be taken to protect that personal information. Lawyer A should follow the rules of the court that address mistakes in e-filing or protocols for insufficiently redacted confidential information. 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.

As to Lawyer A’s question regarding a possible duty to report Lawyer B, Rule 4–8.3(a) requires a lawyer “who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority.” “Knows” is a defined term per Rule 4–1.0(f), and “denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.” If Lawyer A knows that Lawyer B violated the Rules of Professional Conduct such that the failure to properly redact raises a substantial question as to Lawyer B’s honesty, trustworthiness, or fitness as a lawyer in other respects, then Rule 4–8.3(a) would require Lawyer A to inform the Office of Chief Disciplinary Counsel, which is the “appropriate professional authority” refenced in Rule 4–8.3(a). See also Informal Opinions 2021–08, 2019–02, 2018–07, 2011–04, 20060074, 20050051, 20010039, 20000132, and 950165. This office cannot provide an opinion as to another lawyer’s conduct, so whether a duty to report exists will be a matter of the independent professional judgment of Lawyer A. In reaching such a determination, Lawyer A should consider the high standard of Rule 4–8.3(a), “substantial question,” including the facts and circumstances surrounding the conduct, and the seriousness of conduct in question. See Rule 4–8.3, Comment [3]. Lawyer A should also consider which acts are considered to be misconduct pursuant to Rule 4–8.4. Additionally, Rule 4–8.3(c) provides that Lawyer A is not required to disclose information to the Office of Chief Disciplinary Counsel otherwise protected by Rule 4–1.6, which addresses confidentiality of client information. If a report cannot be made without including such client confidential information, and Plaintiff will not consent to such disclosure, Lawyer A may not inform the Office of Chief Disciplinary Counsel as to the conduct of Lawyer B.