Lawyers Assail Rise in Court Secrecy
Trial lawyers want judges to be more selective in choosing case files to seal from public view. CONFIDENTIALITY AGREEMENTS
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``If you don't allow different lawyers for individual plaintiffs who are facing the same corporate behemoth to share their work, it makes it difficult for them to arrive at the truth, which is the goal of a lawsuit,'' says Robert Stolzberg, chairman of the Boston Bar Association's aviation litigation committee.Skip to next paragraph
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Attorneys at the trial lawyers' meeting said one way to get around the order is to disseminate information quickly, before a secrecy order can be obtained. Once the information is already out, they say, there is little use attempting to obtain one. The ATLA has an exchange group that shares information on such cases.
But often clients faced with a large settlement offer are simply not concerned about the public's right to know, lawyers say. In many cases they just want the money, and are happy to keep silent. The confidentiality orders end up driving a wedge between the client and the lawyer, who may feel a moral responsibility to help other lawyers win similar cases.
``I see real ethical problems for defense lawyers trying to bind another lawyer from taking future cases of any sort,'' says Mr. Stolzberg. ``It prevents another claimant from getting the right attorney for the job.''
A few states are starting to recognize that confidentiality orders are not always in society's best interest. A Florida law requires judges to receive testimony that convinces them that sealing a case is in the best interests of society. The alternative would be to seal some documents, but not the whole trial.
A Virginia law says the court must allow information in a case file to be given to public regulatory bodies for safety reasons, or to other claimants, even if a judge has sealed a product-liability file from general public scrutiny.
Of course, the orders sometimes protect corporate trade secrets. ``There is a legitimate desire to protect that from public scrutiny and just because someone sues, [a company] should not be forced to relinquish that secret,'' Stolzberg says. There are ways to carefully craft a confidentiality order to protect private information while keeping open other pertinent information, he says.
Floyd Abrams, partner for the New York firm of Cahill, Gordon & Reindel, has obtained secrecy orders for some corporate defendants.
`` A lot of lawsuits pose enormous threats to entire industries,'' he says. ``In cases like [those] a settling defendant doesn't want to run the risk of of a nearly identical suit being brought on the same facts.''
He disagrees with the ATLA resolution requesting judges not to sign secrecy orders as a matter of rote, saying some cases which should be settled might not be without such an order.
``It's a very difficult situation that any judge is put in,'' Mr. Abrams says. ``The judge has to engage in delicate balancing to take account of the interests of the parties in a particular case before him while at the same time considering the broader public's interest at stake.''