Working and Improving GR 31

by Walt Krueger

Over the years my practice has evolved from general practice — including dissolution, torts, estate planning, probate, and trusts — to one focused on estate planning, probate, and trusts. A user of computers since 1985, and former chair of the WSBA Court Rules and Procedures Committee and Electronic Communications Committee, I have enjoyed the increasing efficiencies and access to information that technology provides and have experience in rule adoption and amendment — i.e., correction and fine tuning.

Like many of you, after exposure to the Internet, with its ready availability of personal information, and an awareness of identity thieves and other nefarious predators, I have gradually reduced the detailed information of clients, estates, and beneficiaries in court filings. Each attorney has the duty to evaluate and protect the privacy of participants in the court record.

For example, for the court to enter an order finding the estate solvent and granting nonintervention powers, the court needs to know only that assets exceed liabilities and costs of administration, not the full value of the estate. The written numbers are driven more by the amount of liabilities and costs of administration than by the gross value of the estate. In a solvent estate, the disclosure may be as opaque as "assets exceed $75,000 and liabilities and costs of administration should be less than $20,000." I once heard a court commissioner in King County read from a petition that the estate was $10,000,000. I don't know if the attorney was acting out of ignorance or braggadocio, but the disclosure did not protect the privacy of the decedent or of the beneficiaries and could subject them to action by financial predators.

Documents filed in court have always been available to the crooks in our society as well as more legitimate business persons; it just takes a trip to the courthouse or to the recorder's office. Given the number of mailings I receive on behalf of estates from real estate professionals and buyers of notes, many people do take the time to review the probate filings (or they get them from the publication of the notice to creditors). A motivated con will not mind spending some time looking through the records, so it is incumbent on us to minimize the information available while meeting our obligations to the court, our clients, and the beneficiaries.

So now we have General Rule 31, which gives us guidance on how to protect the privacy of those we serve. In the past many of us out of a sense of tradition and completeness, and without much thought, loaded our documents with information, often exact and detailed, but unnecessary for the judge's decision. GR 31 instructs us in the use of Social Security numbers, names of minor children, financial account numbers, and driver's license numbers. Yes, it raises a number of questions and causes a certain amount of gnashing of teeth, as all change does, but this is needed change in court practices to meet a technologically changing world. We will reason through this thicket and better protect the privacy of participants. Of course, there is a special incentive in getting the answers right — for the opposing party may move the court to order redaction, and reasonable expenses may be awarded the prevailing party. GR 31(e)(2).

GR 31(e)(1) states: "Except as otherwise provided in GR 22 [Access to Family Law Records], parties shall not include, and if present shall redact [sic], the following personal identifiers from all documents filed with the court, whether filed electronically or in paper, unless necessary or otherwise ordered by the Court."

The questions all of us practitioners are asking ourselves are these: How does this rule affect the way I normally practice? When is the exception to the rule "necessary or otherwise ordered by the Court"? Are there any other exceptions?

In probate filings, I do not file any documents containing Social Security numbers, but if I did, the rules tells me to use only the last four digits of the number. I have heard that some attorneys place the decedent's Social Security number in the Notice to Creditors. This practice should stop immediately. We give the statutorily required notice to the Department of Social and Health Services and to the Department of Revenue in a cover letter stating the decedent's Social Security number and enclosing either the Notice to Creditors or the Notice of Tendency of Probate.

If we are required to file an accounting with the court, then either we should not use financial account numbers, or, if they are "relevant," then we must recite only the last four digits. In blocked accounts, the receipt typically lists the full account number. In the future I intend to list the name of the bank and the last four digits of the account, but will check with the bank beforehand to learn if there will be problems honoring orders of withdrawal from the account. In the guardianship area, the account numbers should be blacked out on bank statements filed with the annual accounting. If you file disclaimers of bank or brokerage accounts, redact the account numbers on the copy filed with the court, but keep the full number on the copy in your file.

I never have occasion to list driver's license numbers, but they are forbidden "unless necessary or otherwise ordered by the court." They may be necessary for a traffic citation, but most of us will not be affected by this portion of the rule.

The section on children, however, will give us some pause and mental machinations. GR 31(e)(1)(B) states: "If the involvement of a minor child must be mentioned, only that child's initials shall be used, unless otherwise necessary." Many estates have minor beneficiaries and we identify them by name, age, relationship to the decedent, and address in the application for probate of a will or a petition for administration. The affidavit of mailings in a probate are addressed to all beneficiaries, including minors. Do I now use initials only for minors? Or are the names permitted under the "unless necessary or otherwise ordered by the Court" language of GR 31, or otherwise permitted by statute? Must I redact the minor's name from the will? RCW 11.28.110 requires a petition for letters of administration or adjudication of intestacy and heirship without the issuance of letters of administration to set forth, among other information, "the names, ages and addresses of the heirs of the deceased." RCW 11.28.237(1) requires the Notice of Appointment to be mailed within 20 days of appointment of the personal representative and "proof of such mailing or service shall be made by affidavit and filed in the cause." Analyzed under the terms of GR 31, the use of the name of the minor is necessary because it is required by statute in the petition. Practically, I don't believe we could ensure notice for due process purposes under the statute if we were to use only initials.

In drafting wills, adequate description of beneficiaries is most important. The original will must be filed according to RCW 11.20.010. We don't even unstaple wills for copying so that the court can see the unmodified original. I doubt a court will require a minor's name be replaced in a will with his or her initials. The minor's name is necessary under GR 31.

In reference to children, GR 31 causes more gnashing of teeth in other practice areas. Effective November 5, 2004, King County adopted new local rule LGR 31, which addresses some of the need for clarification. See the rule for the specifics: http://www.metrokc.gov/kcscc/gr31.htm. The general headings are "Complete names of children, sealed case type"; "Confidential information form"; "Domestic-relations orders"; "Child who is alleged to be a victim of a crime"; "Child who is charged with a crime"; "Orders issued for the protection of a child"; "Orders restraining child from contacting or harassing others"; and "General authority."

Despite the many avenues for public input, in the case of GR 31 going back to 1999, we often pay attention only when the rule goes into effect and then complain in surprise. This rule is scheduled to be reviewed by the Supreme Court on October 6, 2005. No rule is perfect, including GR 31. In practice we will learn its strengths and weaknesses, and we will inform the court and others of our experiences (especially the bad ones) and our suggestions for improvement. If you wish to shed some light on the rule, you may write to Chief Justice Gerry Alexander with copies to the WSBA Rules and Procedures Committee and your local WSBA governor.

In addition to the practice issues, there is a basic philosophical debate between the concepts of practical privacy of paper records and of open records for transparency in judicial decision making. GR 31 permits equal access to paper and electronic records. For years the principle of open court records went unquestioned as a way to ensure that our judges based their decisions on the facts of the case and not on Chicago-style payoffs, but you had get to the courthouse to access the records. As we move into the era of electronically accessible court records, my friends for whom privacy is of paramount interest are locked in battle with my friends who believe the public will be better able to monitor the judiciary with access to records over the Internet. Section 7 of the Washington Constitution states: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Section 10 states: "Justice in all cases shall be administered openly, and without unnecessary delay." GR 31 threads the needle in attempting to protect privacy, but maintains open records, extending the status quo to electronic access.

Although I stand with my friends, being from a small town and growing up unaware of practical privacy, because it seemed that everyone in town knew about everyone else, I think greater access to the court records may keep people more honest. In McLuhanesque terms, we may be creating the more honest global village — or not.

My friends in the family law bar are upset with the rule because they experience the overstated claims and flammable allegations in dissolution affidavits, and are concerned that neighbors and children will gain access to these nuclear issues. Despite the fact that court cases will not be "Googleable" and that most clerks will charge for access, which should discourage access by children, family law practitioners want dissolution cases to be accessible only at the courthouse. Yet I suspect the number of cases in which such affidavits are involved is a small proportion of all dissolution cases. If a practitioner knows ballistic affidavits will be filed in a case, he or she should move to seal the file. My friends complain that court commissioners and judges are reluctant to seal the files. GR 15(c)(2)(B) authorizes the sealing of records "under compelling circumstances where justice so requires." Commissioners and judges in dissolutions should consider whether such affidavits should be sealed in the best interests of the children, certainly compelling circumstances where justice so requires.

In rulemaking and in legislating, there is a tendency for courts and the Legislature to address the exceptional and infrequent, and ignore the 99.9 percent of matters that flow through the courts with no problems. Such rules, especially in the guardianship field, increase the cost for all similar matters. The family law practitioners make the same mistake when they seek to exempt all dissolution cases from the rule and require access only at the courthouse, rather than seek to seal the records of the minority of cases. The WSBA Family Law Section now seeks legislation to exempt dissolution cases from GR 31.

There is a delicate balance in the separation of powers between the Legislature and the courts. According to Robert F. Utter and Hugh D. Spitzer, "The Legislature originally was active in court rulemaking, but the state supreme court has gradually exerted almost complete control over the judicial rules in Washington . . . ."1 Having seen the State Bar of California practically destroyed by the California Legislature several years ago, I believe the Family Law Section is shortsighted in seeking to raise this issue in the Legislature. If you dislike rules promulgated by judges, after substantial attorney input, think how you will like rules established by the 99 percent attorney-free Legislature. Like Icarus, beware of what you seek.

Let us all work with the rule for the next year and make our recommendations for change based on actual experience. GR 31 is good for privacy and for open functioning of the courts.

Walt Krueger is a Kirkland estate-planning attorney in private practice. He is a member of the Real Property, Probate and Trust Section and the Elder Law Section of the WSBA, and serves on estate-planning-related sections of the American Bar Association, the King County Bar Association, and the East King County Bar Association. He can be reached at walt_krueger@msn.com.

NOTE
1 The Washington State Constitution: A Reference Guide (Greenwood Press, 2002), at 111.