Court Refuses to Seal Documents That Are “Embarrassing” to a Lawyer, But “Not Unfairly Embarrassing”

Starting at Sida v. MurphyThe matter was decided Wednesday by Judge Greg Kays. Mo.):

Plaintiffs allege that defendants committed legal malpractice. A Missouri state court entered default judgment against the plaintiffs for failing to follow Missouri’s Rules of Civil Procedure. The Court now has the Defendants’ Motion to Seal all Filings Herein pertaining to the Undersigned’s ability to Practice Law.

Plaintiffs have filed numerous documents in which they claim, falsely and without merit, that Mark Murphy (Defendant Murphy) isn’t authorized to practice law before the Court. They ask that all files discussing Murphy’s authorization to practice law before this Court be struck, including ECF Nos. 7-12, Defendants’ Reply in Support to Their Motion to Compel Arbitration and the pending motion as well as Plaintiffs’ responses to it. Plaintiffs object to the motion, saying that the Defendants did not demonstrate a compelling need for sealing the documents. This is contrary to the law which requires court records be kept open for inspection.

According to a companion order Mr. Murphy was an attorney suspended from practicing law by Missouri and Kansas state bars. He has not been disciplined and is therefore authorized to practice before this Court. Because Local Rule 83.6 basically creates the presumption this Court will impose reciprocal disciplining on an attorney who was disciplined by another Court, plaintiffs were able to present a strong-based basis for claiming that Murphy wasn’t authorized to practice before it when they filed their briefs and motions. The filings of Plaintiffs were not frivolous, or not sanctionable and should be rejected.

{Murphy was suspended by the Kansas Supreme Court on October 16, 2020 for his representation of both buyer and seller during the 2004 sale. Murphy was not subject to the complaint until 2016. Reciprocal discipline was imposed by the Missouri Supreme Court on August 31, 2021. Because Murphy was rarely present before it and due to delays in filing the ethics charges, the Tenth Circuit determined that a reciprocal suspension would not have any practical effect. It also ruled that a temporary suspension of Mr. Murphy’s rights under these circumstances did not make sense. In the United States District Court for the District of Kansas, a suspension was not practical and the court refused to make a reciprocal discipline order. However, it publicly reprimanded Murphy for the conduct in the 2004 transaction. Whether this Court—the United States District Court for the Western District of Missouri—should impose reciprocal discipline is an issue which is currently pending.}

This case is also being considered by the Court.

Common law assumes that all judicial records can be accessed by the public. This is not just based on First Amendment values of free speech and freedom of press, but it also reflects the fact that public can’t adequately watch the judiciary’s performance when records of judicial proceedings have been kept secret. The only way to overcome this presumption is by proving that documents must be sealed, such an instance where the court files have been “used for inappropriate purposes” or documents that reveal trade secrets or threaten the safety of someone. See, e.g., IDT Corp. v. eBay (8th Cir. (2013) (Finding confidential and highly competitive information in a company warranted the sealing of the complaint). Goff v. Graves (8th Cir. (2004) (recognizing that the government has a compelling interest in receiving evidence sealed by a confidential informant). Ultimately, in determining whether to seal documents, the Court must balance “the interests served by the common-law right of access … against the salutary interests served by maintaining confidentiality of the information sought to be sealed.”

The documents in the case are embarrassing and scandalous. However, when combined with the Court’s Order denying Plaintiffs’ motions to strike, the documents accurately reflect the facts. Accordingly, the presumption in favor of openness has not been rebutted, and so the motion is DENIED….