But “Doe” To The Lawyers?

For a while now, Eugene Volokh has been engaged in a battle against the use of pseudonymous litigation, the John or Jane Does that seem to do an awful lot of litigating these days. His point is that the courts are open to the public, that the true identities of the parties allows the public and media to know, investigate and question who is trying to use the courts to accomplish dubious ends.

It’s not so much that Eugene doesn’t have a point about the overuse of pseudonymous litigation, but that in certain categorical instances, Title IX campus sex suits for example, the purpose of the suit is inherently defeated when the true identities of the parties are known since the law requires that the identities remain confidential before reaching the litigation stage, and so litigating the denial of due process would cause its own great damage to the plaintiff independent of the damage already suffered.

But then there’s the issue raised by a peculiar case out of Wisconsin.

This case involves a constitutional challenge by parents to a school district policy. The substantive issues, however, remain pending before the circuit court and are not properly before us. This is an appeal contesting the circuit court’s decision to seal and protect the parents’ identities from the public and the school district, but not from the attorneys defending the school district’s policy…. Applying Wisconsin law, we determine the circuit court did not erroneously exercise its discretion by requiring disclosure of the parents’ identities to opposing attorneys, while allowing the parents to keep their names sealed and confidential as to the public and the district.

First, a digression, since it’s impossible to appreciate the context of the risk here without some understanding of the underlying substantive issues. The public school involved has a policy that not only requires the school to respect a students gender identity choices, such as name and pronouns, but to conceal it from the student’s parents if that’s the student’s choice.

In April 2018, the Madison Metropolitan School District (the District) adopted a document entitled, “Guidance & Policies to Support Transgender, Non-binary & Gender Expansive Students” (the Policy). The Policy contains multiple provisions that animate the parents’ claims in this case. We highlight several for context.

• “Students will be called by their affirmed name and pronouns regardless of parent/guardian permission to change their name and gender in [District] systems.”
• “School staff shall not disclose any information that may reveal a student’s gender identity to others, including parents or guardians and other school staff, unless legally required to do so or unless the student has authorized such disclosure.”
• “All staff correspondence and communication to families in regard to students shall reflect the name and gender documented in [the District system] unless the student has specifically given permission to do otherwise. (This might involve using the student’s affirmed name and pronouns in the school setting and their legal name and pronouns with family).”

A group of parents brought suit, but sought to do so pseudonymously for fear they would be attacked, subject to threats and intimidation, if their true identities were revealed. Up to this point, the application to go pseudo is fairly ordinary and nothing a court can’t handle in the normal course. But what was distinct here is that the parents not only wanted their identities concealed from the public, but their adversary, the school district, and the district’s attorney. Yes, even the lawyers.

Essentially, the narrow question in this case centers on the parents’ argument that granting defense counsel access to the sealed complaint should be reversed. They assert that they and their children face a serious risk of harm, their identities are irrelevant to their legal claims, and disclosing their identities to opposing counsel could result in that information being leaked.

Do the parents fear the lawyers will personally go after them? Maybe, but that’s not what they’re arguing. Rather, they’re contending that the more people who know their identity, the greater the likelihood that it will become public and, once it becomes public, there’s no take backsies.

[T]he crux of the parent’s continued worry is their fear that the attorneys on the other side will intentionally or unintentionally violate the court’s protective order and expose them to the risks they identify. Attorneys are duty-bound to follow court orders, however. We have no evidence that any of the law firms defending the District’s policy have violated a protective order in the past or that there is any risk of them doing so now.

Nevertheless, the parents essentially make an unfounded accusation that the attorneys on the other side will risk their law licenses, through carelessness or otherwise. This pure speculation lacks merit. Each attorney is an officer of the court subject to strict ethical rules in the maintenance of confidential information.

In other words, they’re lawyers so you can trust them. And, indeed, the lawyers are duty-bound to abide the court’s protective order. But as the dissent notes, lawyers doing their duty isn’t what it used to be.

The circuit court … appear[s] not to have realistically considered what likely will occur with regard to the parents’ identities in today’s tell-all world. Even the United States Supreme Court, an institution that has historically demanded the highest levels of integrity and confidentiality, has been subject to unauthorized leaks. These leaks have consequences. One need look no further than this case for examples. Following the leak of the Supreme Court’s draft opinion in regard to abortion, Wisconsin Family Action, an amicus in this case, had its offices vandalized and attacked with Molotov cocktails. Here, the circuit court found that the parents and their children likely would be subjected to harassment if parental identities were disclosed.

There was once a time when judges could trust lawyers to not only take their ethical duties seriously, but to believe that their professional responsibilities trumped all else, including any political views as to what evil parents would challenge a schools equity policies toward gender identity. Is that still the case for lawyers? For the staff in law offices? For their senior partners and baby associates? All that’s needed is for one person to spill the beans. Can the court trust that it won’t happen given the ubiquitous conflicts between professional ethics and social justice?