BBA Comments Eliminate Attorney Sanctions and, in Criminal Cases, Protect Identities

On August 10, the SJC released a new rule, SJC Rule 1:24, governing identifying information in court documents.  The rule is modeled on SJC guidelines that have been in place since 2009 and restricts parties and the courts from including certain personal identifying information in court documents.  It will take effect on November 1, 2016.

The BBA’s Criminal Law, Delivery of Legal Services, and Family Law Sections all commented on an initial draft of the proposed rule in October 2015.  Their comments appear to have accounted for at least a couple of major changes in the final version of the rule:

• Section 6 – The Court removed language permitting non-redaction of the following information in criminal and youthful offender cases as suggested by the privacy concerns raised in our comments:
  • Social Security number
  • Driver’s license number
  • State issued ID card number
  • Passport number
  • Defendant’s parent’s birth name identified as such

• Section 8 – In response to concerns expressed by some of the Sections, the Court clarified language permitting courts to sanction attorneys for non-compliance through “corrective action.” As the Sections suggested, the Court added accompanying comments to Section 8, and adopted the Sections’ proposals that:
  • a judge should consider, in determining whether to take such action, the harm to privacy/financial interests that has occurred, the nature and amount of information improperly disclosed, and whether the non-compliance was “willful”.
  • a judge be granted broad discretion in determining appropriate action, including the option of requiring the responsible party to correct the redaction and refile the document.

We thank you for all your work on these comments and the courts for including us in their review process. We are pleased to see that these comments are making a difference.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association