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.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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