Sealed Filings and Cooperation: Keeping Your Role Confidential.

Last Updated on: 4th August 2026, 01:33 am

Lawyer Confidentiality

Under Model Rule 1.6, a lawyer’s duty of confidentiality “covers all information relating to the representation, regardless of its source.” This duty applies for the life of the relationship with the lawyer and beyond.

Sealed Filings

Sealing a record “restricts all access to the record, even though the record continues to exist.” Even though sealing can be helpful, it also has limitations:

• Sealing cannot prevent the government or press from leaking information.
• A sealed filing can be unsealed if a judge orders it.
• Sealing cannot protect against leaks from within the government, gossip, or press reports that can make a public trial’s witness list clear.
• Sealed filings cannot prevent third parties from observing your presence in court.

Witness Protection Program

The Witness Security Program (WITSEC) is not meant to keep your identity secret from the general public. Instead, WITSEC focuses on protecting the physical safety of witnesses through government relocation and identity changes.

Crime Victims’ Rights Act

The Crime Victims’ Rights Act, 18 U.S.C. § 3771, gives crime victims the “qualified right... To have the right to be reasonably informed of and attend all public court proceedings.” This may include admission to the courtroom for a sentencing or probation hearing.

endangered Witness Admission

For truly endangered witnesses, 18 U.S.C. § 3521 provides protections against testifying in public. This statute provides that, in any proceeding “under federal criminal law in which a person is charged with an offense under section 3521(b),” the court “may admit any person to the proceeding under cover.” The court can grant the request if:

• the person’s life is endangered;
• there is not a reasonable alternative that would minimize the danger to the person;
• the person has not committed a serious criminal offense;
• the person’s testimony is important; and
• admitting the person under cover does not create an unreasonable risk to the public.

Can I safely tell my lawyer that I am cooperating?

Is There an “80/20 Rule” for Lawyer Ethics?

No ABA Model Rule or other prevailing standard for legal ethics establishes an “80/20 rule”, either for lawyers or for clients. In legal ethics, each situation is either right or wrong. Neither Model Rule 1.6 nor any other rule allows for a lawyer to be “80% right or 20% wrong” about upholding the attorney-client relationship.

Can I Confidently Give My Lawyer the Information He Needs to Adequately Advise Me?

Generally, yes. Clients can be assured of their lawyer’s confidentiality regarding their legal representation. If you have a new or existing lawyer and want to be confident in his or her ability to provide appropriate and effective legal advice, you can safely communicate with your lawyer about information related to your representation. This is covered in Model Rule 1.6.

Are There Any Exceptions to the Duty of Lawyer Confidentiality?

Model Rule 1.6, the ABA Model Rule that addresses lawyer confidentiality, does contain exceptions. For example, Model Rule 1.6(b) states: “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:... (1) to prevent reasonably certain death or substantial bodily harm;..... (6) to comply with other law or a court order.” However, outside these specific exceptions, disclosure of a client’s protected information is considered unethical attorney conduct.

When Should I Be Careful About Disclosing the Facts of My Case?

Outside of your communications with your lawyer, you should be extremely careful about disclosing the facts of your case. Your defense counsel should warn you against discussing the specifics of your case with third parties, including other lawyers. However, this doesn’t mean you should not share information with others when you have the chance to talk to your lawyer. For example, sharing information with your lawyer, not the government or law enforcement agents, will avoid unwanted disclosure of information that could jeopardize your case.

Are You Bound by Confidentiality If You Do Not Represent Me?

ABA Model Rule 1.18(b) states that lawyers must protect the confidentiality of “all information the lawyer receives from a prospective client regardless of whether the client engages the lawyer to represent him.” Model Rule 1.18(b) applies whether a lawyer is being contacted for the first time or a prospective client has contacted the lawyer before and is now considering engaging the lawyer for future representation.

What Are the Rules Regarding Client and Attorney Communications?

The ABA Model Rule 1.6(a) requires lawyers to keep client information confidential. However, as ABA Formal Opinion 477R explains, “The extent of any reasonable care depends on a number of factors and circumstances, including but not limited to, the sensitivity of the information, the vulnerability of the communication method being used, the number of people who would have access to the information, and the person or entity to whom the information would be transferred.”

How are confidentiality, privilege, sealing, and protective orders different?

What Is the Difference Between Confidentiality and Attorney-Client Privilege?

These concepts are often used interchangeably, but confidentiality (which is defined in ABA Model Rule 1.6) is much broader than attorney-client privilege. For example, attorney-client privilege is an evidentiary rule that protects “confidential communications between a client and his or her attorney,” which do not include the underlying facts being communicated. Model Rule 1.6, on the other hand, defines confidentiality even more broadly. The rule applies not just to communication, but to all information related to the lawyer’s representation of the client.

When Does Attorney-Client Privilege Not Apply?

Even if a communication is otherwise protected by attorney-client privilege, you can voluntarily waive the privilege by sharing confidential information with third parties who are not essential. For example, discussing your case facts with a potential defense lawyer’s paralegal may violate the privilege. However, there are other exceptions to attorney-client privilege as well, and you should speak with your defense lawyer about your case before disclosing any information.

What Is the Difference Between Ethical Confidentiality and Attorney-Client Privilege?

The difference between ethical confidentiality and attorney-client privilege can be summarized thusly: ethical confidentiality is about a lawyer’s duty to protect their client’s secrets. Attorney-client privilege is about when a lawyer can be compelled to disclose their client’s secrets in a legal proceeding.

What Are the Differences Between Protective Orders and Sealed Filings?

Protective orders and sealed filings differ in their purpose, their scope, and how they are issued. While protective orders are used to regulate how those who receive discovery information can use it, sealed filings limit public access to information filed in court. Under Federal Rule of Civil Procedure 16(d)(1), “A party may file a motion for a protective order to avoid or limit disclosure or to protect information from:... (i) discovery or the use of information uncovered in discovery; or (ii) disclosure, inspection, copying, re-disclosure, or dissemination.”

Similar to the provision for sealing, violation of a protective order may be grounds for holding the disclosing party in contempt of court. However, a protective order usually involves a case with a court-ordered seal. For example, Federal Rule of Criminal Procedure 6(e)(4) provides that, when an indictment is returned and the magistrate judge directs that it be kept secret: “the indorsement shall be kept secret until the defendant is in custody or released by the court.”

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

When Does a Federal Court Seal Cooperation Records?

Federal districts have yet to adopt a single uniform approach to sealing cooperation records. Instead, prosecutors and defense counsel in each district must look to local rules and standing orders for guidance on sealing procedures.

However, regardless of local procedure, any request to seal a case record must still satisfy the applicable legal standard. Generally, the legal standard for sealing falls into one of two broad categories: (i) one that imposes a rebuttable presumption in favor of public access; or, (ii) one that imposes a heightened scrutiny requiring a compelling interest and narrow tailoring.

(1) A Rebuttable Presumption in Favor of Public Access

Under the law of federal access to court records, the common law “imposes a rebuttable presumption of public access to all court records.” When dealing with sealed filings and protective orders, the U.S. Court of Appeals for the Sixth Circuit, the U.S. Court of Appeals for the Seventh Circuit, the U.S. Court of Appeals for the Eighth Circuit, and the U.S. Court of Appeals for the Ninth Circuit have all adopted this rebuttable presumption standard.

(2) A Heightened Scrutiny Standard

Although the First Amendment “does not formally create a general right of access to all judicial records,” when it does apply, “the access is a First Amendment right, and the public and press presumption of access is not easily rebutted.” As a result, sealing under the First Amendment carries a higher burden than sealing under the common law. When determining whether sealing is justified, “the burden on the party seeking to seal is to show that a compelling interest justifies restrictions and that the protections are narrowly tailored to achieve that interest.”

Regardless of the specific standard involved, the decision-making process for sealing a case record or protective order is generally the same. When the courts evaluate the need for confidentiality and secrecy, judges must also consider whether less restrictive alternatives are available, such as targeted redactions or other means of restricting disclosure.

Furthermore, when assessing the need for sealing, courts must go beyond determining whether a party’s safety or welfare is “at risk.” Instead, courts must conduct a nuanced analysis that identifies specific and probable harms to justify secrecy. As a result, defense lawyers must be specific and pointed about the risks of unwanted disclosure, and prosecutors must be prepared to rebut this risk.

When Should Parties Oppose Further Sealing?

When weighing the need for sealing, the relevant circumstances in a case will frequently change over time. In federal courts, once a sealing order is issued, its scope and duration depend on the order’s terms. However, if there is a significant change in the facts or the law surrounding a specific case, then either the prosecution or the defense can seek to unseal a record.

Also, once a sealing order is issued, it is possible that both the government and the defense are bound by the order. While this is generally true, the specific sealing order will determine who is permitted access to the sealed information and under what circumstances.

In 2016, the Judicial Conference’s Committee on Court Administration and Case Management, in consultation with the Criminal Law and Defender Services Committees, issued interim cooperation guidance. However, it was issued as a report with recommendations for the federal district courts. Because the guidance was nonbinding, districts have adopted different approaches to implementing or declining to implement it.

What Clues Can Reveal Cooperation on a Federal Docket?

When a case is filed in federal court, docket entries are routinely released to the public in real-time. While the existence of a sealed docket entry does not directly reveal the information contained within a sealed filing, it may point toward undisclosed information, such as cooperation. For this reason, the 2016 interim guidance from the Judicial Conference’s Committee on Court Administration and Case Management (CACM) recommends that all federal courts adopt the use of uniform placeholder supplements. By using a uniform placeholder supplement for all sealed filings, the likelihood of making an inference about the underlying reason for sealing is lessened.

For most defendants facing federal criminal charges, plea agreements result in their sentencings within the same federal district. For sentencing, the federal district courts apply the sentencing guidelines, as recommended by the U.S. Sentencing Commission, unless their federal district adopts its own sentencing guidance for cooperation.

Under U.S.S.G. 5K1.1, “the court may, if the government so requests, impose a sentence below the guideline range if the defendant has provided substantial assistance in the investigation or prosecution of another person.” However, this guideline only applies to defendants who have committed a criminal offense that is serious enough to warrant a sentencing reduction.

What Is a Rule 35(b) Reduction?

A Rule 35(b) reduction is another means for reducing your sentence following conviction and sentencing in federal court. Although Rule 35(b)(1) allows for government motions for sentencings reductions to be filed within one year of sentencing, Rule 35(b)(2) provides for the filing of such motions beyond one year under specific circumstances. With certain exceptions, if the government moves to reduce a defendant’s sentence under Rule 35(b), the government must disclose the grounds for such reduction. This means that, with certain limited exceptions, Rule 35(b) motions generally cannot be filed under seal. This can also pose risks to defendants who have a dormant docket.

What Are the Recommendations of the Committee on Criminal Law and Procedure’s Guidance?

The Judicial Committee on Criminal Law and Procedure’s report includes two recommendations relating to sealing the information of cooperating defendants:

• “The use of sealed documents with non-descriptive titles (e.g., “Supplemental Filing”) to avoid which could cause any inference to be made by the public or media of the substance of the filing and/or the defendant’s cooperation.”
• “The use of a standard docket entry for sealed documents so as not to provide information that could be gleaned from the docket itself (e.g., “Sealed Document Filed”).”

Can a Proffer or Testimony Expose My Cooperation?

(1) Disclosure to the Defense

If a cooperator provides evidence (proffers, testimony, sealed filings, and otherwise) to the defense, that should not automatically place that evidence, and the cooperator’s identity, in the public record. Prosecutors and defense lawyers can keep these items sealed or subject to a protective order.

(2) Testifying as a Cooperator

While keeping a cooperator’s role confidential from the public is possible, it is extremely difficult to keep it confidential from the defendant. For example, a testifying cooperator ordinarily cannot remain anonymous from the defendant who is being charged. When facing a criminal case, defendants are generally entitled to know the identity of all witnesses.

(3) Pre-Indictment Cooperation

What about pre-indictment cooperation? Pre-indictment cooperation is different from testifying in open court because pre-indictment cooperation does not usually create a public court filing.

(4) Cooperation by Proffer

What if I am cooperating by giving information without a pleading? This is known as a “proffer.” While a proffer statement itself is not a public record, and giving a proffer is not public information in and of itself, a cooperator’s role can become public in various circumstances. With regard to making a proffer, the terms of the written agreement will dictate when and how the cooperator’s proffer information can be used.

(5) Impeachment and Rebuttal of Proffer Information

When can prosecutors use a proffer statement against a cooperator? This is a question of the specific language contained within the cooperator’s written agreement. However, most agreements will grant the government the right to use a proffer statement for “impeachment or rebuttal purposes” if the cooperator testify in open court and testify to a different version of events than the cooperator proffered.

(6) Clues and Indications Outside the Court Record

Outside of the court record, are there any other clues that reveal a defendant’s cooperation? Yes. Cooperation is common in federal criminal cases, and there are numerous external clues to this, including:

• Meetings with prosecutors in courthouses, prison jails, and jails
• Prison transfers
• Unusual scheduling of continuances
• Unusual sentencing dates
• Delay in sentencing after a conviction or guilty plea

(7) Confidentiality during a Proffer

Is information shared during a proffer covered by confidentiality or privilege? Not unless you have a written agreement with the government that says it is. While confidentiality and privilege protect communications between you and your lawyer, communications involving prosecutors are not confidential attorney-client communications.

(8) Derivative Use of Information from a Proffer

What about a cooperator’s identity? The specific terms of a proffer agreement will dictate this. With that said, many proffer agreements will authorize the “derivative use” of the information obtained during the proffer process, meaning a prosecutor can use information that was derived from the proffer to build their case against a defendant or pursue other targets. While a proffer agreement may forbid the government from using a cooperator’s statements, it may grant the government authority to use other information that the statement reveals.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.