No Sealing or Pseudonymization of Opinion Related to Lawyer Discipline


From yesterday’s decision in In re Demetriades, decided yesterday by the Second Circuit, in an opinion by Judge Richard Sullivan joined by Judges Robert Sack and Michael Park:

Tara A. Demetriades appeals from orders of the Committee on Grievances of the Board of Judges of the United States District Court for the Eastern District of New York (the “Committee”) finding her liable for violating various provisions of the New York Rules of Professional Conduct and imposing sanctions for these violations, including a six-month suspension from practicing law in the Eastern District. On appeal, Demetriades argues that the Committee (1) deprived her of due process by “failing to afford her with reasonable notice of the charges and an adequate opportunity to defend against the charges,” (2) “failed to substantiate each and every element of the charges by clear and convincing evidence,” and (3) imposed a “punishment [that] was excessive in light of the fact there was no harm to the public.”

She has also requested that we maintain her appeal under seal, arguing that public disclosure of her identity would cause her reputational harm. For the reasons explained below, we reject each of these arguments. Accordingly, we affirm the orders of the Committee and order that the docket in this appeal, and all its contents, be unsealed….

As an initial matter, we must address the sealing status of this appeal. Although the parties submitted their briefs and appendix under seal, we deem it appropriate to issue this Opinion on the public docket and for publication in the Federal Reporter. Likewise, while this appeal was originally docketed under the caption “In re: Jane Doe,” we deem it appropriate to refer to Demetriades by her real name in this Opinion.

This Court has consistently recognized a “strong presumption … under both the common law and the First Amendment” that judicial documents—and especially judicial decisions, which “are used to determine litigants’ substantive legal rights”—”should … be subject to public scrutiny.” That presumption, of course, “does not end the inquiry,” and judicial documents “may be sealed” if sealing “is essential … and … narrowly tailored” to “preserve higher values” or “interest[s]”—for example, to “safeguard[ ] the physical and psychological well-being” of “minor victims of sex crimes,” or to avoid “providing terrorist elements with propaganda to fuel their continued global hostilities against the United States.”

Here, the only “interest” in sealing that Demetriades puts forth is her personal interest in avoiding the “reputational harm” that she might suffer if the public were made aware of the “very serious allegations here.” That interest, however, cannot meet the “weighty” standard for overriding the presumptions of open records and public access. See, e.g., Lugosch v.  Pyramid Co. (2d Cir. 2006) (vacating district-court sealing order premised on possibility that “presumption of access” might be outweighed by “defendants’ … interests in unwarranted reputational injury” if defendants ultimately won favorable merits judgment). Indeed, we see no meaningful public “value[ ]” that would be served by filing this Opinion under seal—or by using a pseudonym to refer to Demetriades. To the contrary, we have repeatedly found public censure or reprimand to be an appropriate and valuable “corrective measure” in attorney-misconduct cases, “in order to protect the public, other attorneys and litigants, the Court, and the administration of justice.”

For essentially the same reasons, we see nothing to justify the continued sealing of the docket in this appeal, or of any of the documents filed on the docket. We must also unseal the contents of the docket for a more quotidian reason: under our Circuit’s Local Rules, a “document” may be “sealed” only if it was either “placed under seal by order of a district court,” or “placed under seal … by order of this [C]ourt upon the filing of a motion.”

Here, neither party ever made a formal, written motion for leave to file its appellate briefs, substantive motions, or other submissions under seal. Instead, the parties appear to have simply assumed that, because the district-court docket was sealed in its entirety, they could continue filing under seal in this Court without first obtaining leave to do so. That is incorrect. The case-filing instructions on our Court’s public website make clear that under Local Rule 25.1, “[a] document that was not sealed in the district court will not be sealed in the Court of Appeals without a Court order”; “[a] party wishing to file a paper under seal with the Court of Appeals must make a written motion”; and “[a]n informal request to seal a document will not be entertained.”

As for the documents that were “sealed in the district court” and “received as part of the record,” such documents generally “will remain under seal in the Court of Appeals” by operation of Local Rule 25.1. Here, however, the Eastern District has unsealed the docket in the underlying disciplinary proceeding in the time since Demetriades appealed. It is difficult to imagine any “value[ ]” that would be served by maintaining under seal a district-court record that has already been unsealed in the district court, let alone a “higher value[ ]” that might suffice to overcome the presumption of open records.

Finally, we memorialize here our decision not to seal the courtroom for oral argument in this appeal. See Oral Argument at 0:07–3:16 (colloquy on this issue). The First Amendment affords the public a qualified right of access to a wide array of judicial proceedings in both criminal and civil matters. Thus, as we have explained in the context of reprimanding a district court for sealing its courtroom, “the power to close a courtroom where proceedings are being conducted … is one to be very seldom exercised, and even then only with the greatest caution, under urgent circumstances, and for very clear and apparent reasons.” We see no reason to hold ourselves to a lower standard of “protect[ing] the public against the government’s ‘arbitrary interference with access to important information.'”Indeed, as one of our sister circuits has explained, “[t]here can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this [C]ourt.”

Of course, much as the “First Amendment right of access to certain judicial documents” is “qualified,” so too is the “right of access” to certain judicial “proceedings.” That right may be overcome only by “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” But here, as explained above, we see no such overriding interest. To the contrary, the higher values at stake here all point in favor of open public access to our proceedings in, and disposition of, this appeal….

As to the substance, here’s the court’s conclusion; there are many more details in the full opinion:

Demetriades violated her most basic duty to the vulnable clients who depended on her: to provide them with diligent, competent representation. Along the way, her neglectful and discourteous conduct harmed the administration of justice itself. The Committee’s evidence establishing as much was unassailable….



Source link: https://reason.com/volokh/2023/01/19/no-sealing-or-pseudonymization-of-opinion-related-to-lawyer-discipline/

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