Keeping Attorneys from Trashing Identities: Malpractice as Backstop Protection for Clients under the United States Judicial Conference\u27s Policy on Electronic Court Records

Federal courts in the United States have embraced electronic access to court records because it promises to allow courts to run more efficiently. At the same time, critics worry that electronically available court records might provide identity thieves with a trove of clients\u27 personal information. The United States Judicial Conference has adopted a policy endorsing electronic access to court records, but the policy does not contain an express enforcement mechanism to protect clients\u27 privacy. While court-directed protections, such as Rule I 1 sanctions, might help prevent identity theft, they will not help clients after the crime occurs. To recover their losses from identity theft, clients might seek recovery from the attorneys who caused their losses by failing to redact their personal information from court filings. This Comment proposes that clients use the Judicial Conference\u27s policy as evidence of their attorneys\u27 duty to redact and demonstrates how clients can prove that their attorneys\u27 failure to redact was the proximate cause of their losses resulting from identity theft