Why Simple Human Error May Result in Complicated Consequences: The Inadvertent Disclosure of Confidential and/or Personally-Identifying Information

Co-authored by Jay Milano

It is necessary for Ohio attorneys to exercise special care in document filings to protect themselves, their clients, and third parties from the inadvertent disclosure(s) of confidential and/ or personally-identifying information—and it is important to recognize the possible consequences for failing to do so, especially where the potential for harm is significant.

When submitting an electronic case filing to the Cuyahoga County Common Pleas e-filing portal, the system makes you check a box to verify the document complies with Rule 45’s provisions governing the filing of documents containing personally-identifying information.

This checkbox routinely forces me to reconsider the material within, or attached to, our court filings — was the client’s SSN redacted from that Institutional Summary Report? Did I accidentally use the full name of that alleged minor victim? Are there un-redacted medical records still attached to that expert report?

If the e-filing portal did not regularly compel me to consider this, I am sure there are times I would forget — inadvertent disclosure is oftentimes simple human error. But it is possible this simple human error could equate to an ethical violation and/or a violation of court orders that require Ohio attorneys to exercise special care when filing documents with sensitive information relative to clients and/or third parties.

Consider the harm. In certain circumstances, the harm caused by inadvertent disclosure could be significant — especially within the area of criminal defense given the involvement of alleged victims, the sensitive facts underlying sexual offenses, the frequent relevance of medical records, etc.

But the risk is inherent to every other practice area as well — for instance, commercial litigation commonly involves sensitive information about company operations, often of a sensitive financial nature. Probate litigation often involves allegations of mental incompetence and/or the inability to handle one’s personal assets — implicating financial, medical, personal information, etc.

In sum, the importance of this consideration cannot be overstated to any particular type of attorney licensed to practice in Ohio — the rules implicated by the disclosure of personally-identifying information could potentially be violated (albeit inadvertently, in most cases) by any of us.

Rule 45(D) of the Rules of Superintendence for Ohio Courts requires the party filing any document to “omit personal identifiers from the document” by filing a separate, specified (and sealed) form detailing the nature of the information omitted.

Sup. Rule 45(D)(3) makes clear that the responsibility for omitting personal identifiers rests with the “filing party” — the attorney who signs off. Sup. Rule 44(H) defines “personal identifiers” as: “social security numbers, except for the last four digits; financial account numbers, including but not limited to debit card, charge card, and credit card numbers; employer and employee identification numbers; and a juvenile’s name in an abuse, neglect, or dependency case, except for the juvenile’s initials or a generic abbreviation such as “CV” for “child victim.”

Many courts codify Rule 45(D) in their Local Rules of Court and/or administrative orders. All divisions of the Cuyahoga County Court of Common Pleas — criminal, civil, domestic relations, probate, and juvenile — have adopted Rule 45(D) as either a Local Rule of Court or a standing Administrative Order.

A violation of a court order can lead to an action for contempt — and a contempt finding, under certain circumstances, can be sustained despite the issue of intent. In any event, a finding of contempt can carry serious direct and collateral consequences — both personally and professionally.

Depending on the circumstances, an inadvertent disclosure could be found to violate the Ohio Rules of Professional Conduct on a broader scale than Rule 45, as the “type” of harmful disclosure is not limited by definition — and if proven against you, the violation could result in possible sanctions.

Rule 1.1 requires us to provide competent representation to our clients, and competent representation requires (among other things) the “thoroughness [] reasonably necessary for the client.” Similarly, Rule 1.3 requires attorneys to act with reasonable diligence in representing a client. Comment [2] reinforces both Rules 1.1 and 1.3 by requiring a lawyer to “control [his/her] work load so that each matter can be handled competently.”

For example, a situation in which one is accused of not exercising the level of thoroughness reasonably necessary for the client based upon the disclosure(s) of sensitive and/or confidential information as to their own client through an inadvertent document filing. This particular hypothetical also implicates the issue of whether inadvertent disclosure would waive the attorney-client privilege.

Rule 1.6 prohibits the disclosure of information “relating to the representation of a client, including information protected by the attorney-client privilege under applicable law,” unless a condition or exception applies as enumerated in subsections (a) and (b) — I.e. a situation in which an attorney inadvertently files a document (perhaps as an exhibit) that has that attorney’s hand-written work product noted during a prior meeting with the client, and is accused of violating Rule 1.6(a).

Because your duty is to the client, your responsibility to the client requires you to “subordinate the interests of others[.]” But Rule 4.4 (Comment [1]) also prohibits the rights of third parties from being “disregarded” — it is important to keep the privacy and dignity of third persons in mind each and every time you submit a filing, by whatever manner.

Rule 4.4 of the ORPC requires lawyers to “not use means that have no substantial purpose other than to embarrass, harass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person” — i.e. a situation in which an attorney is accused of violating Rule 4.4 for filing a Motion with sensitive and/or confidential information about a non-party to the litigation.

Rule 4.4 also requires lawyers to promptly notify the senders of inadvertent disclosure(s) if documents are received that noticeably include them.

In the context of professional disciplinary proceedings (should a case go that far) the presence of aggravating and mitigating circumstances is a crucial inquiry in evaluating the appropriate sanction to be imposed. Among the list of aggravating factors set forth in Section 13 of Rule V of the Supreme Court Rules for the Government of the Bar of Ohio is “[t]he vulnerability of and resulting harm to victims of the misconduct.” Where an inadvertent disclosure causes an individual significant harm, this factor could weigh heavily against you.

Clerical mistakes and simple human errors are inevitable — as document filing systems and techniques continues to advance, the opportunities for error could also increase.

It is necessary for Ohio attorneys to exercise special care in document filings to protect themselves, their clients, and third parties from the inadvertent disclosure(s) of confidential and/ or personally-identifying information—and it is important to recognize the possible consequences for failing to do so, especially where the potential for harm is significant.

This post first appeared as an “Ethics Perspective” column at clevemetbar.org.

Learn about Recent Changes to Ohio’s OVI Laws

On July 4, 2013, Anna Louise Rooney was riding a bicycle to her Chillicothe, Ohio home when she was struck and killed by a drunk driver. The woman who killed her had a blood alcohol content of over two times the legal limit when she struck Annie. She also had at least three prior OVI charges on her record.

After her death, Annie’s parents – with the assistance of several state legislators – began a fight to toughen Ohio’s OVI laws. The result: “Annie’s Law,” signed into law by the governor on January 5, 2017 and effective as of April 6, 2017.

Annie’s Law changed the way Ohio handles OVI convictions in multiple ways. Prior to Annie’s Law, an individual with an OVI conviction (or equivalent offense) within the previous six years faced harsher consequences if convicted of a “second OVI in six.” Annie’s Law changed this “look-back period” to ten years – now, if you are charged with OVI and have a prior equivalent conviction within the previous ten years, you face a mandatory jail sentence and your options to obtain limited driving privileges are severely hindered.

This increase in the look-back period means more individuals convicted of OVI offenses will face more severe consequences, and more individuals will face felony OVI charges – as the severity increases, so does the penalty. Having an attorney who understands the law is crucial.

The Milano law firm is considered among the best in Cleveland, Ohio and surrounding counties. We understand the importance of your personal and professional reputation, and we know how an OVI can affect it. Contact us – we will fight for you, defend you, and work through the problem together.

The Difference Between a Misdemeanor v. Felony OVI in Ohio

Under Ohio law, OVIs range from first-degree misdemeanors (the most serious misdemeanor) to third-degree felony offenses. The most serious misdemeanor-level OVI is followed by a mandatory sixty days in jail, and the most serious felony OVI is followed by up to five years of prison.

These penalties are not as straight forward as they may sound, however – in certain circumstances, the penalty can increase by an additional four months in prison for certain felony OVIs. And the mandatory sixty days of jail time for an unclassified misdemeanor OVI can be decreased to thirty days in exchange for 110 days of “alcohol monitoring” – typically an ankle bracelet that constantly monitors your blood alcohol content.

The severity of an OVI charge can depend on a variety of factors – blood alcohol content level, the number of prior equivalent convictions, and refusal to test, among others. But even the lowest level OVI – a first-degree misdemeanor – is a serious offense with serious consequences. A first-in-ten OVI conviction is followed by between three days and six months in jail, and a mandatory license suspension of between one and three years – we can explain options that mitigate these penalties, such as attending a Driver’s Intervention Program in lieu of serving jail time, and obtaining limited driving privileges for the duration of your suspension.

The Milano law firm is considered among the best in Cleveland, Ohio and surrounding counties. We represent clients in various municipal courts in Lorain and Cuyahoga counties, among others.

Whether you are faced with an OVI charge for the first time or the fourth– whether you are charged with a misdemeanor or a felony OVI – we can help. We will assess your situation, explain your options, develop a plan, and work through it together. If you need help, Contact us.

Jane Doe

Ohio’s sex offender risk-based registration scheme was enacted in 1997. Since then, Ohio sex offender laws have dramatically evolved into their current existence: three levels of sex offender classification determined solely based upon the offense of conviction, and for those deemed Tier III offenders – the most severe – no opportunity to challenge that classification.

Rather, Tier III sex offenders must register with the sheriff in the county in which they reside every ninety days until death, and no court can decide otherwise. In addition to their new persona, Tier III sex offenders are subject to community notification, residential housing restrictions, and are required to report any change to their name, address, employment, schooling, license plate, and email address, among others.

An Order issued in August of 2017 by the United States District Court for the Southern District of Ohio could be the beginning of the next evolution in the life of Ohio’s sex offender scheme: an opportunity for offenders convicted and sentenced under former Chapter 2950 of the Ohio Revised Code, or “Megan’s Law,” to be brought before a court and potentially re-classified if the court finds the offender is unlikely to commit another sex offense.

The Evolution of Ohio’s Sex Offender Scheme

In October of 2012, Jane Doe, through her attorneys with the Ohio Justice & Policy Center in Cincinnati, Ohio, filed a complaint under 42 U.S.C. § 1983 alleging her constitutional rights to procedural and substantive due process were being violated; Jane was convicted of unlawful sexual conduct with a minor in 2006 and classified as a “sexual predator” by the sentencing court – under Ohio’s former sex offender scheme, state trial judges classified individuals convicted of sex crimes following a hearing based on a case-by-case analysis of statutory factors of “dangerousness.”

As Jane’s complaint details, former Ohio Revised Code § 2950.09(D)(1) entitled offenders classified as “sexual predators” to a hearing either one year before release from prison or one year after the conviction if he or she was not sentenced to prison time. If reclassification was denied at that time, the offender could request a new hearing after five years. After the 2003 amendments, Ohio Revised Code § 2950.07(B)(1) provided that, “[i]n no case shall the lifetime duty to comply… be removed or terminated” and § 2950.09(D)(2) read “the classification or adjudication of the offender as a sexual predator is permanent and continues in effect until the offender’s death…”

In 2007, Megan’s Law was replaced by the federally-mandated Adam Walsh Act (“AWA”), which completely eliminated the judicially-determined classification scheme and mandated Tier I, II, and III sex offender classifications based solely upon the offense of conviction. As originally enacted, the AWA required offenders convicted and classified under Megan’s Law to be re-classified as either Tier I, II, or III sex offenders, but the Ohio Supreme Court struck down that requirement as unconstitutional in State v. Bodyke, 126 Ohio St.3d 266 (2010). Thus, individuals classified as “sexual predators” pursuant to pre-2007 Megan’s Law, like Jane, remain classified as such today.

Jane Doe v. Mike DeWine, Attorney General, et al.

Jane did not pray for compensatory or punitive damages; she prayed for declaratory relief and a hearing to allow the sentencing court to revisit their determination as to her “dangerousness.” She sought the opportunity to be heard.

According to her complaint, after Jane was convicted in 2006, she completed sex offender treatment and counseling, and was assessed by two separate sex offender treatment professionals who concluded she was low-risk to reoffend. Jane therefore alleged that her continuing classification as a “sexual predator” was a dissemination of false information, and Ohio’s failure to allow her a hearing was a violation of her procedural and substantive due process rights under the federal Constitution. Among various other liberty interests, Jane alleged her status as a predator unconstitutionally precluded her from living in federally-subsidized housing – because of this, Jane was having difficulty securing a home for herself and her four children. She pleaded that, given the opportunity to be heard, she could prove she should not be classified as a “sexual predator” and the court would re-classify her as a “sexually oriented offender,” which would mean her registration requirements would end in 2016, rather than continuing until her death.

The named defendants – three state actors responsible for maintaining Ohio’s Sex Offender Registration and Notification system – immediately moved to have Jane’s lawsuit dismissed against them. They claimed that, in part, they were “arms of the state” and thus immune from liability, and that Jane’s claims are barred and should have been raised at the trial court level when she was convicted in 2006. The court disagreed. Jane’s lawsuit remained alive.

Not much occurred between the denial of the defendants’ Motions to Dismiss and the filing of their Motions for Summary Judgment a mere six months later. Most of the defendants’ arguments on summary judgment were the same alleged as their original basis to dismiss. The court’s 32-page opinion carefully reviewed the applicable facts and law before finding that Jane’s constitutional rights to procedural due process were being violated – her inability to secure federally-subsidized housing was sufficient to trigger constitutional protection.

The court’s August 8, 2017 Order read, in part: “The Court STRIKES DOWN AS UNCONSTITUTIONAL Ohio Revised Code §§ 2950.09(D)(2) (2005) (effective 4-29-2005) and 2950.07(B)(1) (2007) (effective 7-31-2003) to the extent they forever prohibit the removal or termination of a ‘sexual predator’ classification with its requirements and duties.”

This is no small victory. Ohio’s sex offender laws have withstood the vast majority of challenges to their constitutionality. However, in the last year, there has a been a push for reform to Ohio’s sex offender registration scheme; in June of this year, the Ohio Criminal Justice Recodification Committee issued its recommended changes to the Senate. The Committee recommended a new system that allows Ohio judges to determine whether Tier I and II offenders (the least serious tiers) should be required to register. Tier I offenders would only be required to register if deemed to be a danger to the community or likely to reoffend. Download the Committee’s entire comprehensive plan in bill form.

The Committee did not recommend changes to Ohio’s scheme as to Tier III (or lifetime) sex offenders, but did recommend certain Tier III offenses result in classification of a lower tier. If these recommendations become law, the crime of unlawful sexual conduct with a minor, of which Jane was convicted, would result in Tier I sex offender registration – this means an individual convicted of the same offense as Jane would only be required to register as a sex offender for fifteen years, and no community notifications would be required.

Jane’s future, however, is still a question mark.

The August 2017 Order is currently pending appeal in the Sixth Circuit.

Call the Milano law firm if you have been charged, or need help with, the following sex crimes: