Could Your Client’s Identity Be Stolen Based on Your Conduct? The Importance of Minn. R. Gen. Prac. 11

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By Janie Paulson

One great aspect of the American judicial system is that we work hard to ensure that the public has the opportunity to be part of the judicial system. The rights of the public to be a part of the judicial process, includes allowing the public access to court records. But with unencumbered public access comes unencumbered access to personal information that may be contained in those public records.

Many argue that taking this public data and using it for improper purposes is rare, but such things have happened. In Colorado thieves used public records to steal thousands of dollars from businesses. In Ohio, public access to records has been blamed for a person stealing the identity of a child who disappeared. In Wisconsin, a medical company filed patient medical records when it filed for bankruptcy. In Ohio, a woman’s identity was stolen from a speeding ticket she received because it contained her driver’s license number, date of birth, Social Security number and address. You can even look up important people’s social security numbers.

In Minnesota, Minn. R. Gen. Prac. 11 aims at protecting this personal information from possible misuse. This rule requires that sensitive information cannot be submitted in any pleading or court document unless it is on a separate Confidential Information Form or Sealed Financial Source Document.

As the comments note, this rule, which is “applicable in all court proceedings, parties are now responsible for protecting the privacy of restricted identifiers (social security numbers or employer identification numbers and financial account numbers) and financial source documents by submitting them with the proper forms. Failure to comply would result in the public having access to the restricted identifiers and financial source documents from the case file unless the party files a motion to seal them or the court acts on its own initiative under Rule 11.03.”  That means, if you file a document with your client’s social security number, you are responsible for protecting the privacy of your client’s social security number.

You may remember to seal bank records or credit card records, but a social security number or a bank account can appear on many other types of documents. A lease, a car loan, a medical record, or even a letter may contain a social security number. If you deal in contracts, personal injury, employment or debtor-creditor, pay particular attention to this rule because these types of cases often include restricted identifiers on the evidence submitted.

Seems simple enough right? But many restricted identifiers and financial source documents are filed without being blacked out, sealed or filed pursuant to Rule 11. Affidavits, criminal and civil complaints, and answers are all possible places to find restricted identifiers and financial source documents. If you order a transcript and ask for fees, often a court reporter’s bill is included in your affidavit, and what might be on that bill – a social security number or tax ID number – along with an address for all to see that access that file. The public access to court documents and records includes exhibits, which are accessible to anyone until returned to the parties or destroyed.

What happens if you do not follow Rule 11?  11.04 states: “If a party fails to comply with the requirements of this rule in regard to another individual’s restricted identifiers or financial source documents, the court may upon motion or its own initiative impose appropriate sanctions, including costs necessary to prepare an appropriate document for filing.” Additionally, Minnesota Rule of Professional Conduct 1.6 requires that a lawyer not knowingly reveal information relating to the representation of a client. Certainly a social security number may relate to the representation of a client, and seldom is that number an essential material fact that requires disclosure to the general public in perpetuity. If the restricted identifier was on a medical record, HIPPA violations may have also occurred depending on which party disclosed the medical record to the public.

So next time you file a document with a court or submit an exhibit in a trial, take a few extra seconds to make sure you are not disclosing your client’s sensitive information.  And if you do need to disclose this information, follow the steps of Rule 11 to ensure that the information is protected.