Lawyers could be liable for staff misuse of confidential records

Indiana lawyers could face potential ethical liability if their paralegals or other staff misuse confidential information from online case records.

That prospect was raised Sept. 8 at a quarterly meeting of the Supreme Court’s Advisory Task Force on Remote Access to and Privacy of Electronic Court Records. Lawyers now have access through to online court documents in many cases, including those that are confidential or include confidential filings.

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Lawyers have online access to available confidential information in cases where they have appeared, but task force member and Court of Appeals Judge Paul Mathias said there is no way for state courts to distinguish when an attorney, or a member of his or her staff, has accessed those records.

“From a tech standpoint, it is just absolutely unthinkable to have an audit trail” to determine the user who accessed records. He suggested a “clarifying rule” in the Rules of Professional Conduct that would state an attorney is liable for misuse of confidential information by the attorney’s staff.

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The task force took no action on the proposal, but several members supported making attorney liability clear in such a case. “If it’s not clearly a violation of the rules, it should be,” said task force member and Indiana University Maurer School of Law professor Fred Cate.

Fraud potential

Mathias pointed to news of the massive data breach reported at the Equifax credit reporting agency that compromised the personal information of 143 million Americans in pointing to potential identity theft issues with Indiana’s online court records.

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He said a particular concern is pro se litigants who have party access to cases in which they are litigants. Mathias said more than 90 percent of pro se litigants fail to register an email at which they can be served notice in their cases. At the same time, there is a risk that others with access to a pro se litigant’s email address, often used as an identifier, might be able to access court records.

Some task force members suggested there are criminal charges that could come into play for someone who illegally accesses non-public court records, but Mathias and others said those cases are difficult to prove and may be a low-priority case among prosecutors.

“This is an area that’s rife for abuse,” said Chris Naylor, assistantexecutive director of the Indiana Prosecuting Attorneys Council.

Getting personal

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The task force appeared to lean toward keeping most court records in domestic, estate, trust and paternity cases offline, though these records in most cases are public and can be accessed at the courthouse. Final orders in most of these cases are available online.

Indiana State Press Association Executive Director Steve Key suggested there may be oversensitivity to concerns that, for instance, someone at home on their couch may be peeking at their neighbor’s divorce case on their computers. He wondered if there were studies on whether “the pajama-wearing couch surfer is a reality.”

Chief Justice Loretta Rush, the task force chairwoman, said the task force had looked at other states. “We really saw people who flipped the switch too soon have pulled back” online access to divorce records.

The task force will revisit whether these records should go online at its next meeting, but Tippecanoe County Clerk Christa Coffey affirmed there are people who do visit the courthouse to check their neighbor’s divorce file. She illicited laughs when she observed that sometimes “they come to the courthouse in pajamas.”

Next steps

The task force recommended making filings available online in civil collections, civil plenary, civil tort, and mortgage foreclosure cases. Final orders in these cases are available online, and access to pleadings in these civil cases will be made available to the public in the future.

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However, the committee decided that no filings in infraction and ordinance violation cases will be made available online, except for final orders in those cases. Several committee members were concerned that personal information such as driver’s license and Social Security numbers and dates of birth could be made available if documents such as speeding tickets were posted.

The committee withheld a decision on whether court filings other than final dispositions will be made available online in small claims cases. Mathias noted that the record would be incomplete because testimony and evidence that may be decisive is often produced at trial in the form of receipts and other documents that may not become part of the record.•

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