Redacting Confidential Client Information

• Author: David L. Hudson Jr.
• Pages: 24-25

The devil is in the details

By David L. Hudson Jr.

Special Counsel Rober t Mueller’s report on Russian

interference in the 2016 election is fi lled with pages and

pages of black boxes that cover up tex t. The four cat-

egories of redactions m ade by U.S. Attorney General

William Bar r include grand jury material, sensitive

material, mat ters that could a ect ongoing investiga-

tions and infringements on the pr ivacy rights of periph-

eral third par ties.

Blackouts in the Mueller report are a high-profi le

example of what lawyers do on a regu lar basis to protect

client information in public documents: redac t.

But sometimes lawyers or legal st a fail to prop-

erly redact informat ion, and such failures can lead to

the release of embarra ssing information, civil liabil-

ity or disciplinar y action. Earlier this year, lawyers for

President Donald Trump’s former campaign chair, Paul

Manafort, fa iled to properly redact a PDF document

fi led in re sponse to an information request by Mueller.

Failing to redact doc uments correctly

can have signifi cant consequences.

Without the investment of time and

extra layers of eyes, mi stakes can

occur, whether technology is us ed

or not.

“The improper use of technol-

ogy to redac t a document is one

example that may receive less

attention on tech best-prac tices

lists,” says Jan L. Jacobowitz ,

director of the Profes sional

Responsibility & Ethic s

Program at the University of Mia mi School of Law. “Yet,

this seemingly mundane t ask becomes monumental if

a lawyer produces a document on which confi dential

or privileged inform ation appears to be redacted but is

actually hig hlighted.”

Mistakes like t hese can lead to the waiver of the

attorney-client priv ilege, a malpractice lawsuit or even

professional discipline in egr egious cases. “It has never

been as importa nt as it has been today to redact infor-

mation properly because the impact a nd consequences

are much greater,” says Dave Deppe, president of

UnitedLex, a legal ser vices outsourcing fi r m.

LEGAL REQUIREMENTS

The law often requires at torneys to ensure that cli-

ent information is redac ted. For example, the Federal

Rules of Civil Proc edure require attorney s to redact

certain pers onally identifi able information in cour t fi l-

ings. Rule 5.2(a), titled “Redacted Filings,” provides that

fi lings c an only include the last four digits of a Social

Security or ta x ID number, the year of an individual’s

birth, a minor’s initia ls or the last four digits of a fi na n-

cial account number.

The legal challenges increa se if lawyers have to

comply with the privacy r equirements of other

countries.

When lawyers fail t o properly

redact informat ion, they conceiv-

ably violate a number of pro-

visions in the ABA Model

Rules of Professional

PHOTO BY WIN MCNAMEE/GETTY IMAGES; SHUTTERSTOCK

Ethics

Redacting

C o n fi d e n t i a l

Information

Client

24 || ABA JOURNAL JULY-AUGUST 2019

Practice

William Barr