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  • Inside Track
    March 16, 2016

    Petition Review: Does Free Speech Trump Duties to Former Clients?

    A proposed rule change would let attorneys openly discuss information related to the representation of a former client if it is publicly available or was already revealed in a public forum. A State Bar ethics committee and attorney regulators say not so fast.

    Joe Forward

    shushing businessman

    March 16, 2016 – Do you want to write about or otherwise discuss information relating to the representation of a former client? For a published article? For a CLE? Attorneys, who have fiduciary duties to former clients, cannot do so unless an exception applies.

    Under the Rules of Professional Conduct for Attorneys, lawyers cannot “use information relating to the representation to the disadvantage of the former client” unless the information “has become generally known” or the rules otherwise permit or require.1

    In addition, information that relates to the representation of a former client cannot be “revealed” – unless the rules permit or otherwise require – regardless of whether the information could have adverse consequences for the former client.2

    However, attorneys may obtain “informed consent” from former clients to “use” or “reveal” information relating to the representation. The informed consent of the former client does not need to be in writing.

    Informed consent would be needed, for instance, if a representation resulted in a published decision and the lawyer wanted to post a link to the published decision on the law firm’s website, or the lawyer wanted to write or talk about the case openly.

    Three attorneys believe the ethics rules are too strict, arguing that lawyers have free speech rights to “use” information about former clients, without their consent, if the information is “publicly available.” They are asking the Wisconsin Supreme Court to modify Supreme Court Rule (SCR) 20:1.9(c), which governs duties to former clients.  

    The term “generally known” is not defined in the rules.

    They propose a clarification that “generally known” information is “information that is publicly available at the time the attorney uses it.” Allowing attorneys to discuss “publicly available” information about their former clients would allow them to openly “use” anything a member of the public could access, even if it is adverse to the former client.

    Also, noting that attorneys may not “reveal” information that is not “generally known,” the petitioners ask for SCR 20:1.9(c) to clarify that “information that is publicly available or has been disclosed in a public forum has already been revealed.”

    The change would allow attorneys to disclose information relating to the representation that comes to light in a public hearing, for instance, even if no member of the public is present. 

    Ethics Committee, OLR Oppose

    The Office of Lawyer Regulation (OLR) and the State Bar of Wisconsin’s Professional Ethics Committee believe the rules don’t and should not allow attorneys to “use” or “reveal” information relating to the representation merely because it is publicly available.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    State Bar Ethics Counsel Tim Pierce, who appeared at a hearing in February to oppose petition 15-043 on behalf of the Professional Ethics Committee,4 says there’s a compelling reason attorneys are prohibited from talking or speaking about prior cases.

    “Attorneys have duties of loyalty and confidentiality to both current and former clients,” Pierce said. “The client, not the lawyer, gets to decide what information his or her attorney can discuss. This protects the trust relationship between attorney and client.”

    Pierce notes that an old formulation of the rule protected information that was covered by the lawyer-client privilege or if the disclosure of the information would likely be embarrassing or detrimental to the client. But it was the lawyer who made the decision about what information might be embarrassing or detrimental to the client.

    When the ABA amended the rules in 1983, it made the choice to broaden the protection of the confidentiality rule and put the decision in the hands of the client, Pierce said.

    Now, there is no discretion to adversely use information relating to the representation, unless it is “generally known” or some other rule or statute requires or allows it.

    “’But ‘generally known’ information does not equal ‘publicly available,’” Pierce said. “Many things are publicly available, but you would not say they are ‘generally known.’”

    “Let’s say you have a court file up in Oconto County. You have to drive up there and ask the court clerk to let you see it. Sure, the information in the file is ‘publicly available,’ but the information is not ‘generally known’ by most definitions of that term,” Pierce said.

    And if attorneys can “use” information that is not generally known but was previously "revealed" in a public forum, attorneys could do lasting harm to former clients, he said.

    Pierce notes that the rule has been in place for almost three decades, since 1988, and “petitioners are arguing for a pretty drastic change.” 

    He said there are few disciplinary cases invoving SCR 20:1.9(c), lawyers can give CLE presentations without violating the rule, and contrary to what petitioners are arguing, the rule does not conflict with any other disciplinary rule. 

    The OLR takes the same stance. OLR Director Keith Sellen, in a letter to the court, said “amending the rule as proposed would permit use and disclosure of information to the detriment of former clients, causing harm that would not necessarily occur simply because the information was already in a public record or previously revealed.”

    The OLR notes a disciplinary case from 2001, Disciplinary Proceedings Against Harman,5 in which the supreme court acknowledged that confidentiality protects information relating to the representation, even if publicly disclosed previously.

    What is Generally Known?

    Pierce points to other states’ ethics rules regarding the duty of confidentiality – implicit in the duty to former clients – which have attempted to define the term “generally known.”

    For instance, a comment to the Massachusetts Rules of Professional Conduct says that “generally known” information is information that is “widely known” in the local community or in the trade, field, or profession to which the information relates.6

    The comment also says that “information about a client contained in a public record that has received widespread publicity” would fall into the category of “generally known.”7

    By way of example, the comment says a client’s disclosure of a previous conviction in another state or a secret marriage is protected information, even if it’s a matter of public record, “because such information was not ‘generally known in the local community.’”8

    A comment to the New York attorney ethics rules says that “information is not ‘generally known’ simply because it is in the public domain or available in a public file.”9

    And in North Carolina, comments to the confidentiality rule say “the mere fact that information is accessible through the public record or has become known to some other persons, does not necessarily deprive the information of its confidential nature.”10

    Along these lines, Pierce would view “generally known” information as “information that has been widely disseminated.” He noted the Netflix docuseries Making a Murderer. “I haven’t seen it, but I know about it. The information has been widely disseminated.”

    On a more realistic level, Pierce would place “easily accessible” information into the category of generally known. "If I can Google the information and find it relatively quickly, then you might be able to call that ‘generally known’ information,” he said.

    “But if I need specialized knowledge or I have to pay to get the information, through Pacer for example, or I have to talk to somebody who will direct me to it – that’s not generally known. Anyone can look at CCAP, but I don’t know what’s in those files," Pierce noted.

    Pierce, speaking individually, said he would support an “educational disclosure exception,” allowing attorneys to discuss a published court opinion for its importance or precedential value at a CLE event. But lawyers would cross the line if giving “behind-the-scenes” information.

    In a court filing on the petition, the Professional Ethics Committee – which “formulates and recommends standards and methods for the effective enforcement of high standards of ethics and conduct in the practice of law” – said there have been few reported violations of SCR 20:1.9(c) in the almost three decades since its adoption.

    The suggested changes, the committee believes, could harm former clients who are not consulted about using potentially embarrassing or detrimental information.

    Petitioners Disagree

    One of the petitioners, Kenosha defense attorney Michael Cicchini, says the rule – as interpreted by the OLR and the Professional Ethics Committee – places a “perpetual ban on lawyer speech” because publicly available information is not considered “generally known” and lawyers cannot “reveal” what has already been revealed publicly.

    The issue came up as Cicchini was preparing to write a law review article about legal issues in a former client’s criminal case, based court documents that were publicly available, as well as a subsequent appellate court decision that was published.

    He never wrote it. Once he looked at SCR 20:1.9(c) and learned how it was interpreted, he realized that doing so could violate the rule on duties to former clients.

    Thus, he wrote a different article, “On the Absurdity of Model Rule 1.9,” published in the Vermont Law Review. Then he and attorney Terry Rose, also of Kenosha, filed petition 15-04. Both joined Milwaukee attorney Robert Henak in suggesting the amended clarifications now before the court.

    The petitioners argue that the term “generally known” is problematic and confusing for lawyers because the rule does not define when information becomes “generally known.”

    “That’s a subjective standard,” Henak told the justices at a public hearing in February. He also filed a letter individually and as amicus chair of the Wisconsin Association of Criminal Defense Lawyers.

    “If you have 5 out of 10 people who know it, is that generally known? If 4 out of 10 people know it, is that not generally known? How do [lawyers] know whether a particular statement is going to be a violation of the rule or not?”

    And petitioners don’t see how attorneys can “reveal” information that is already public. They say the term “reveal” should be interpreted to mean that attorneys cannot “reveal” private information, because one cannot “reveal” information that is already public.

    Adding these clarifications would supersede current interpretations of the rule and would allow attorneys to exercise their free speech rights on cases where former clients don’t have an expectation of privacy concerning the information, petitioners assert.

    Cicchini Says First Amendment Trumps

    Cicchini says the current interpretation does not advance the policy behind the rule: to encourage people to seek legal assistance secure in the knowledge that their “secrets and confidences” will be protected while helping lawyers be fully informed.

    “Secrets and confidences are always protected. This proposal would not change that,” Cicchini said. “But it is nonsensical to restrict an attorney’s use of publicly available information. Other lawyers I surveyed cannot believe the rule operates this way.”

    Cicchini says most clients don’t have an expectation that their attorneys are restricted from using publicly available information to critique or comment upon the legal system or its decisions, especially when others (including other attorneys) are free to do so.

    He also says getting informed consent can be difficult.

    “First of all, the client will be automatically distrustful of a waiver,” Cicchini said. “They might think you are asking to disclose secrets or confidences, which is not the case.

    “Secondly, why should I have to obtain someone’s approval to talk about widely available public information? Third, what if a client doesn’t want to give it to you?

    “At some point, you have to say, these are matters for the public. Why should one person out of the U.S. population – the attorney or attorneys who represented the client – why should they be prevented from discussing this public information?”

    Cicchini also notes Hunter v. Virginia State Bar.11 In that case, the Virginia State Bar, which regulates lawyers there, imposed sanctions against an attorney for blog posts discussing his criminal cases without obtaining his clients’ consent.

    But the Virginia Supreme Court ruled that the lawyer had a First Amendment right to repeat “truthful information made in a public judicial proceeding.”

    “To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections,” the opinion states. “[A] lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

    However, Ethics Counsel Pierce says he and other professional responsibility lawyers believe Hunter was probably wrongly decided.

    “Lawyers have First Amendment rights, but states have a compelling interest in regulating the practice of law,” Pierce said. “Most people would think that fostering an ongoing duty of loyalty and trust between a lawyer and a client is a compelling state interest because of the important fiduciary nature of the relationship.”

    In a letter to the court, Waukesha attorney Edward Hannan – a 40-year veteran who previously chaired two OLR committees and served on the State Bar’s Professional Ethics Committee – said the proposed changes would “disavow client autonomy, undermine the essential fiduciary character of the lawyer-client relationship, and threaten public confidence in both the judiciary and the bar.”

    The Wisconsin Supreme Court held a public hearing on the petition in February, but has not yet scheduled it for discussion in administrative conference.

    Endnotes

    1 Supreme Court Rule (SCR) 20:1.9(c).

    2 Id.

    3 Petition 15-04 requests modifications that differ from what petitioners are now requesting.

    4 The State Bar of Wisconsin’s 12-member Professional Ethics Committee, chaired by Wausau attorney Dean Dietrich, “formulates and recommends standards and methods for the effective enforcement of high standards of ethics and conduct in the practice of law” and “issues formal opinions to guide the ethical conduct of Wisconsin lawyers.”

    5 2001 WI 71 (“[I]nformation obtained by Attorney Harman from his client, S.W., even if not protected or deemed confidential because it had previously been filed in the Wood County case, could not be disclosed without S.W.'s permission because that information was obtained as a result of the lawyer-client relationship he had with S.W.”).

    6 Massachusetts Rules of Professional Conduct, Rule 1.6 [comment 3A].

    7 Id.

    8 Id.

    9 New York Rules of Professional Conduct, Rule 1.6 [comment 4A].

    10 North Carolina Rules of Professional Conduct for Attorneys, Rule 1.9 [comment 8].

    11 285 Va. 485 (2013).



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