Are sealed records truly sealed?

It is expected that the Michigan Court of Appeals will rule on whether to uphold Judge Colombo's decision to release documents pertaining to the alleged relationship between Mayor Kwame Kilpatrick and his Chief of Staff. While it seems that the public has the right to political transparency, the judicial process survives on settlement agreements to be kept under seal. Thus, we have competing interests in this matter. The entire process of judicial sanctity is called into question when a sealed settlement agreement is leaked. This could potentially reek havoc on the entire ADR field. However, this case was not like any other case. It was a case involving the entire City of Detroit and, unfortunately, the Mayor chose to put his concerns over the concerns of his constituents.

QUESTION: How does one balance the interests of providing the public with full transparency, while, at the same time respecting the confidential nature of settlement agreements? Further, where does private life start and public life begin?

Be careful on how you use email

One attorney is certainly going to be in hot water upon learning that one of their emails describing settlement negotiations made the front page of the New York Times. Email is so quick and is used more and more for highly sensitive and critical messages that we, oftentimes, forget about the consequences of pressing that magic "send" button. While we have had encrypted email for years, it is hardly a standard in the industry. It is only going to get worse as the Federal Courts already require e-filing and the State of Michigan, as of January 1, 2008, has permitted service on opposing counsel to be done via email.

Perhaps attorneys should require that, as part of their representation of a client, that the client be giving an email key so as to ensure a closed circuit of communication.

What are your thoughts?