The problem is that while it may seem convenient, in the midst of document production, to sign a confidentiality agreement and to worry about the effects at a later date, there may be provisions that may warrant more immediate review and analysis to avoid significant problems in the future. In addition, the designation of a document filed in court as “confidential” should be limited to situations such as trade secrets where sealed applications are effectively justified. The New York City Bar Association website offers an agreement on the confidentiality of the model, which is supported by the New York Business Division. The model of agreement does not contain only a provision of a lawyer`s aspiration; It does, however, contain “sealing arrangements,” which can lead to logistical and legal complications on the road. Today, in business litigation, many documents are often produced in identification processes. At the same time, clients may wish to keep their documents confidential and that the people they can verify are limited. The solution is usually for the parties to subordinate the production of the document and the resulting discovery to a confidentiality agreement. As a result, New York rules prohibit the waterproofing of court records “except in the case of a properly written finding,” which must indicate the reasons for waterproofing and “take into account the interests of the public and the parties.” Even if the parties to the proceedings accept waterproofing, the strong public interest in the transparency of judicial proceedings may end their consent. Similarly, New York`s rules of professional conduct require lawyers to keep their clients informed to a extent that would only be contrary to most lawyers. In particular, Rule 1.4 (b) requires counsel to “explain an issue to the extent reasonably necessary to enable the client to make informed representation decisions.” The rules also state that a lawyer must “reasonably consult with the client on how to achieve the client`s objectives,” “keep the client properly informed of the status of the case” and “immediately respond to appropriate requests for information from a client.” Rule 1.4 A) (2-4).
Where a lawyer`s consultation regime prohibits counsel from consulting in-house counsel or business executives on certain documents or information obtained at the time of discovery, compliance with this provision may lead to a violation of New York professional rules. Given the time constraints associated with compliance with investigation deadlines and the astonishing number of documents to be verified and produced, counsel may accept a confidentiality agreement that has already been used, and a “Let`s deal with this later” approach when identifying certain documents submitted to the agreement. In Gryphon, the New York Appeal Division stated that the documents should not be characterized as “the eyes of lawyers” when such a designation “prevents counsel from fully discussing with his clients all relevant information in the case in order to properly formulate a defence against counter-action.” In this case, the First Department also indicated that the defendants in Gryphon were not commercial competitors to the applicants; instead, the parties were simply adversaries in disputes.