Public versus private

Attorneys call for family court records to be confidential

By Traci R. Gentilozzi
The Daily Record Newswire

A sole practitioner trying to boost his divorce practice regularly visits trial court websites to take a look at the divorce complaints. He then sends letters to the non-filers, hoping to get them as new clients.

On several occasions, the letters have notified non-filers of the divorce proceedings before the filers have been able to break the news. And in some cases where domestic violence is alleged, the letters have tipped off non-filers, making it nearly impossible for the filers to get away unscathed.

And it’s not just trolling lawyers who get hold of family court records.

Nosey neighbors, potential employers and children of divorcing couples have access, too. With the click of a mouse, they can find everything online from divorce judgments to pleadings — including motions with psychotherapy records, social services reports and arrest records attached.

This filing free-for-all needs to end, according to Birmingham private practitioner Jessica R. Woll, who has just established the Family Law Coalition of Michigan, a group of lawyers pushing for legislation to make family court records confidential.

Woll believes a private filing system, similar to the one in the State of New York, should be implemented in Michigan to keep a family’s “dirty laundry” from being aired publicly and to protect the children of divorcing couples.

Right now, judges decide whether to seal a family law case, considering the interests of privacy and the public under MCR 8.119. It’s a balancing act that Oakland County Circuit Judge Joan E. Young has performed numerous times over the years.

Young once believed that family court records should be public, with only portions being kept private. But she has since changed her stance, and now believes that all family court cases should be sealed.

“I initially thought there could be a comprehensive list of things that should be sealed, but I realized that is impossible,” Young said. “The reality is that it needs to be all or nothing.”

Bloomfield Hills private practitioner Edward D. Gold said an across-the-board ban on accessing family court records is a “slippery slope.”

“I am in favor of creating a method, in appropriate cases, where certain types of filings can be kept confidential, as long as it’s determined to be in the best interests of the children,” he said. “But I do not believe it’s appropriate for all files to be suppressed. It takes away the public’s right to know.”

Unfettered access
Birmingham lawyer B. Andrew Rifkin acknowledged that trolling has become a problem in the legal profession. “The Family Law Council tried to address it several years ago and it
didn’t go anywhere,” he said. “When a lawyer gets involved just to make a buck, that’s terrible.”

In 2014, Sen. Rick Jones, R-Grand Ledge, introduced Senate Bill 981 to help curb the trolling problem. The legislation would have prohibited lawyers from offering legal services to defendants in divorce cases until two weeks after they have been served with the complaint and proof of service is filed. The bill, supported by the State Bar Family Law Section, stalled in committee.

And in 2012, a 14-day restriction similar to SB 981 was considered as an amendment to Michigan Rule of Professional Conduct 7.3. The rule change was supported by the State Bar Representative Assembly and the Family Law Section. The Michigan Supreme Court declined to adopt the amendment, concerned it might unduly restrict commercial speech.
In addition to trolling, Young said identity theft and child safety are other concerns with public access, given the information that’s included in divorce documents, like bank account numbers, complete names, birthdates and parenting time schedules.

“Certain things have to be in the pleadings or judgment, but these things can also be used to steal the identity of the parties and can put children at risk of predators,” she said.
Franklin private practitioner Harriet B. Rotter said the public has the right to know that a couple has divorced, similar to a marriage being a matter of public record. “But it does not have the right to know who got the house and how much child support is being paid, which is all typically in the divorce judgment,” she said.

According to Young, the issue boils down to one question: why does someone other than the parties and their attorneys need the information?

A lawyer’s responsibility
Practitioners noted that attorneys contribute to the problem by attaching documents to motions, like tax returns, Child Protective Services reports, arrest records, psychological evaluations and school records.

“Lawyers see it as an offer of proof, without realizing it is now in the public record,” Young said. “Yes, the court needs this information. But you can instead present it at the time of hearing or attach it to the judge’s copy.”

Many motions are filed during the six-month “cooling off” period that’s required after a divorce is initiated, Woll said. “If you want your spouse to have supervised parenting time because he or she is an alcoholic, you may allege facts about their drinking in the motion,” she said. “If your alcoholic spouse has a DUI, you may attach a copy of the police report in support of your claim. The motion is then available online for anyone to read.”

But Rifkin, who is with the Law Firm of John F. Schaefer, pointed out that not attaching documents to motions could create an appellate problem. “You need to make the record in the trial court,” he said. “And if a document is attached to the judge’s copy only, then it’s not in the court file and won’t be part of the record on appeal.”

However, “sealing the court file altogether would solve this problem,” he noted.

Young suggested an attorney might even be negligent for attaching private records to a document that will become public. “If you file a motion for change of custody and attach confidential therapy records and now it’s in the public domain, is the lawyer liable?” she asked.

Gold agreed that lawyers need to be better educated about what to include in family court pleadings. “I think a lot of this goes to teaching lawyers how to file papers that protect the client’s personal records and things that could lead people to steal another’s identity,” he said.

Rather than making all family court records confidential, Gold proposed more stringent rules for pleadings. “There needs to be some responsibility attached to accusations that lawyers cannot substantiate,” he said. “And to the extent that occurs, we should discourage it by the imposition of fees, costs or other types of penalties. It might make lawyers more responsible.”

Unintended consequences?
Novi private practitioner James J. Harrington has reservations about making family court filings confidential. He said that, depending on the details, any proposal could be a “broad brush solution to a complex problem.”

One unintended consequence of privatizing records is the “sweeping under the rug” of outrageous and abusive behavior, said Harrington, a former chair of the State Bar Family Law Section. “A case can be made that this kind of behavior deserves public scrutiny,” he said.

Gold agreed. “One can argue that if you make everything private, then it will open up the floodgates for anything to be alleged, without any fear of reprisal.”

Gold emphasized that he does not favor the public having access to allegations that could adversely impact children. “But I am concerned about starting this path where everything will suddenly get protected,” he said. “I think you can argue that by not sealing files and leaving them public, it may have a chilling effect on people making allegations that are untrue.”

According to Farmington Hills attorney Mathew Kobliska, of DeBrincat, Padgett, Kobliska & Zick, a blanket prohibition on file access could make it difficult for lawyers to effectively represent their clients. He said if records are made confidential, the courts should allow licensed professionals with a legitimate interest in the case to access the information.

Woll said the New York system being examined as a model for Michigan does not present constitutional barriers to those with an interest in the case.

“A third party with an interest is not precluded from petitioning the judge and asking for the records,” she said. “It is just an extra step when the records are sealed. It does not violate anyone’s constitutional rights.”

Making a change
Any effort to make family court records confidential will be challenging and will have plenty of naysayers, Young said. “The media will certainly oppose it. And some people will argue the public should be able to scrutinize the bad behavior of judges. But there’s no problem with someone coming and sitting in the courtroom.”

In addition to the formation of the Family Law Coalition of Michigan, the Michigan Judges Association also has the issue on its radar, Young noted.

Meanwhile, Harrington emphasized there is no “quick fix” to the concerns that have been raised. “Fashioning a carefully drawn statute reflecting the experience of other states and avoiding First Amendment challenges is wise,” he said.

Gold agreed, saying a “plethora” of questions must be asked and answered before any legislative action is taken. “However, there are ways to avoid all this rancor appearing in pleadings if responsible lawyers want to do it,” he said. “To me, that’s the real issue.”

Woll acknowledged that attorneys need to be more vigilant about what they include in their pleadings. “We as practitioners can change things by making an effort to only include certain information in our filings,” she said. “By doing that, we can begin to change this right now … if we want.”

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