Legal loophole to be reviewed by Md. judiciary
System lets lawyers, not judges, hide court filings
State court administrators are reviewing procedures for Maryland’s new electronic filing system after it came to light the system lacks safeguards to prevent attorneys from indiscriminately hiding their court filings from the public.
A spokeswoman for the judiciary said Wednesday that administrators will consider what action, if any, is needed to close the loophole.
They rolled out the system known as Maryland Electronic Courts, or MDEC, across Maryland — not yet in Baltimore City, Prince George’s and Montgomery counties — beginning in 2014, and the system afforded attorneys a powerful new feature. With two clicks, lawyers could designate their filing as confidential, whether it’s an answer to a lawsuit, divorce papers, or a motion in a murder trial.
This “confidential” button brought a change in precedent, and has left even experienced attorneys unsure of when to use it. It shifted discretion about what should be kept secret from judges to lawyers.
“That’s nonsense,” said retired Court of Appeals Judge Joseph Murphy Jr., who has served as chairman of a committee on
judicial rules. “If you want something sealed, and there are plenty of good reasons to seal stuff, the person who decides that is not the lawyer or some technician, it’s the judge.”
The matter surfaced this week in the murder trial of the man who pleaded guilty in October to gunning down five people in June 2018 at The Capital newspaper, which is owned by Baltimore Sun Media. In a news article Sunday, The Capital examined use of the “confidential” button, finding state prosecutors and public defenders made frequent use of it during their case against Jarrod Ramos, the gunman who also pleaded not criminally responsible, Maryland’s version of the insanity defense.
In response to questions since then, the judiciary spokeswoman said court administrators are reviewing their policies and procedures for use of the “confidential” button.
Currently, the rules state attorneys may click “confidential” only when a document includes personal information such as Social Security numbers, bank account information and medical records, which are routinely shielded from public view. When attorneys mark documents as confidential this way, they also must file a redacted version for the public and cite the rule under which they are sealing their record, under state judiciary rules.
In practice, however, such steps are not always taken. In November 2017, the judiciary sent an email to attorneys warning them not to indiscriminately click “confidential.” The Sun and The Capital obtained a copy of the email.
“Recently, some filers have been designating entire documents as being confidential without any supporting rule or statute,” officials wrote, urging attorneys to follow the rules.
State Court Administrator Pamela Harris and Judge John Morrissey, chief of the District Court of Maryland, declined to answer questions. They oversee implementation of the state courts’ electronic filing system on a judicial advisory committee. The judiciary spokeswoman cited the rules in an email and wrote that administrators were reviewing the policies, but she did not comment further.
Still, the filing system’s manual includes a notice in bold type about how to use the confidential button.
“Do not automatically select ‘Confidential.’ A document is public unless confidential by rule or statue,” the manual advises.
And yet, there’s plenty of confusion in the ranks. Annapolis defense attorney Scott MacMullan said he routinely clicks “confidential.”
“Most attorneys, just to protect their clients, would file everything confidential,” he said.
Annapolis attorney Brennan McCarthy said he reserves the button for exceptional circumstances.
“If I use it once or twice a year, it’s a big deal,” he said.
Baltimore defense attorney Natalie Finegar said the button has left her guessing.
“I’ve never known when you can use that and when you can’t. I always wondered what happens if I click ‘confidential,’” she said. “It’s a drastic change if an attorney himself elects it without a court order.”
William Cooke, a defense attorney in Annapolis and former public defender, said the rules should be clearer.
“It wouldn’t surprise me that lawyers are getting MDEC wrong,” he said. “There probably have been lots of things filed under seal that shouldn’t be.”
The matter goes to the heart of an American criminal justice system built on principles of transparency and open courts, some argue.
The confusion became apparent Tuesday, during a hearing in the Ramos case in Anne Arundel Circuit Court. An attorney for The Baltimore Sun and The Capital asked the judge to open up the files labeled “confidential.” Circuit Judge Laura Ripken sought to clarify how the button should be used.
Ripken said she wanted prosecutors and defense attorneys to ask for her permission with a “motion to seal” when they use the button. Such is the practice in federal courts, where attorneys have long filed electronically and must ask for a judge to approve a confidential filing. And that was the routine practice in state courts before the electronic filing system arrived.
“Like all new policies, the best intent doesn’t necessarily mean that the best result,” said Murphy, the retired judge. “I’m sure the courts will respond to this.”