On November 24, 2014, the Illinois Supreme Court issued the most recent version of Rule 138. The first version was adopted October 24, 2012 to be effective July 1, 2013. It was then amended June 3, 2013, to be effective July 1st. It was then amended June 27, 2013 to be effective July 1. Then it was amended December 24, 2013 to be effective January 1, 2014. Then it was amended again on May 29, 2014 effective immediately and then it was amended again, the most recent, November 21, 2014, effective immediately.
Rule 138 is an attempt by the Court to protect personal identity information from being in public records—court files. As originally written, it would have been exceedingly difficult to practice probate law dealing with guardianship of minors, adoption law, child support, child custody, divorce, or parentage law. It would also have been difficult to practice in some areas of collection law. The original Rule was drafted by the Illinois Supreme Court Rules Committee which contained no divorce lawyers and no collection attorneys. The Illinois Supreme Court held a public hearing on that in October, 2013. I had written two letters to the Court dealing with the proposed rule from the perspective of family law attorneys. I made a presentation at the public hearing at the invitation of Justice Kilbride who was then the Chief Justice of the Supreme Court. At that public hearing, there were representatives of the child support enforcement division of the Illinois Attorney General, the child support enforcement division of the Cook County States Attorney, a representative of the Cook County Court Clerk, the head of the Illinois Court Clerks Organization, a collection lawyer, and me. There may have been a couple other people who made presentations. After that public hearing, the Rule was revised.
When Justice Garman became the Chief Justice of the Illinois Supreme Court, I again spoke with her twice about this, once at the AWALC Installation at which she was a speaker, and once at the Illinois State Bar Association meeting in Lake Geneva in the summer of 2014. At that time, I explained to her that the Rule as it existed made it exceedingly difficult to practice family law, guardianship of minors, etc., etc. She said not to worry about it, the Rule would be changed. Apparently I was not the only person who spoke to her or other members of the Court about this. There was an article in the February 2014 Illinois State Bar Association Journal concerning the then version of the Rule. I was quoted in it.
The new Rule, effective November 21, 2014 does not include in the definition of personal identity information birth dates or names of individuals known to be minors. In sub-paragraph (c) says that when there is personal identity information in a court paper, there must also be a redacted filing. The redacted filing is to only include certain things—the last four digits of the social security number, the last four digits of the driver’s license number, the last four digits of a financial account number, the last four digits of a debt or credit card number. No longer must it include the year of birth or the initials of a minor.
It is not up to the Court or the Clerk to review documents to see whether or not they comply with the Rule. Subparagraph (f) (2) “if the Court finds the inclusion of personal identity information in violation of this Rule was willful, the court may award the prevailing party reasonable expenses, including attorney’s fees and court costs.”
It is essential for all of us who file anything with the Court, be it a will, a petition, a Court order or anything, to make sure that we comply with Rule 138.
Gary L. Schlesinger