Vol. 83, No. 10, October 2010
Judges often ask me questions about my clients, and I am not sure what I should say. What is the rule about disclosing client information?
The obligation to keep client information confidential is the cornerstone of the attorney-client relationship. There are two ways to look at the disclosure of confidential client information. One focus is on what may be impliedly authorized for disclosure by the attorney as part of the representation. The other relates to disclosures that may be authorized because the client has given informed consent.
Lawyers are allowed to disclose confidential client information if disclosure is “impliedly authorized” to “carry out the representation” under SCR 20:1.6(a). The rule and the accompanying comment offer some guidance to Wisconsin lawyers:
“SCR 20:1.6 Confidentiality. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c).” (Emphasis added.)
. . .
“Authorized Disclosure.  Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.”
Lawyers are allowed to make disclosures when doing so is appropriate to accomplish the objectives of the representation agreed to between the lawyer and the client. The lawyer must be sensitive to situations in which disclosure might be adverse to the client’s interests but may be authorized under certain circumstances.
The Annotated Model Rules of Professional Conduct (Sixth Edition) provides some additional guidance to lawyers:
“Rule 1.6 generally prohibits the disclosure of a client’s identity or whereabouts unless the client consents or the disclosure is impliedly authorized to effectuate the representation.
. . .
“In the context of litigation, the general rule is that a client’s identity and whereabouts are not protected by the attorney-client privilege unless ‘the net effect of the disclosure would be to reveal the nature of a client communication.’”
Using the Terms “Specialist” or “Specializes In.” In the June 2010 Wisconsin Lawyer, I wrote about social media and problems with statements on a social media page that a lawyer specializes in a particular area of the law. A reader has accurately noted that the Comment to Model Rule 7.4 (and Wisconsin Rule SCR 20:7.4(a)) allows a lawyer to expressly state that the lawyer is a “specialist” or practices a “specialty” or “specializes in a particular field” even though the lawyer is not certified as a specialist by an ABA-approved entity. This Comment would allow a lawyer to use the word “specializes” as long as it is not used in a context that suggests that the lawyer is certified as a specialist by a particular entity.
I am very cautious about the use of “specialist” or “specializes in a particular field of law” because I do not want to use words that could be misunderstood or form the basis for a complaint of being misleading. This may be an overprotective view, but it also eliminates a potential claim that a lawyer owed a client a higher level of a duty of care because the lawyer presented himself or herself as a specialist in a particular field of law.
Producing a Client’s File. The September 2010 Ethics column addressed what should be considered the client’s file and given to the client at the time of termination of representation or withdrawal from representation. A reader correctly pointed out that this was addressed in Ethics Opinion E-00-03, in which the Ethics Committee wrote “a lawyer is not required to provide, at his or her own expense, a duplicate of those materials in a client file that the lawyer previously sent to the client.” This reference is correct, but I caution about applying this language in a situation in which a lawyer is terminating representation or withdrawing from representation.
An argument could be made that certain parts of a file do not have to be given to the client because they were previously sent to the client. This argument might not be persuasive if the client was charged for the copies and, more important, if only certain letters were sent to the client but telephone notes, handwritten notes of conversations, research documents, or other items in the file were not sent to the client. It is simply better to produce the entire file when requested by the client, at least the first time, to comply with the requirements of SCR 20:1.16 and the common concept that the client is the owner of the client’s file.
Disclosures Expressly or Impliedly Authorized
Notwithstanding the duty to be tight-lipped about client matters, lawyers must obviously disclose a great deal of information relating to representation of clients simply to do their jobs. These disclosures are permissible when clients have expressly or impliedly authorized them.
What is “impliedly authorized” will depend on the particular circumstances of the representation. The ethics opinions and court decisions below provide some guidance:
- ABA Formal Ethics Op. 01-421 (2001) (lawyer hired by insurance company to defend insured normally has implied authorization to share with insurer information that will advance insured’s interests);
- ABA Formal Ethics Op. 98-411 (1998) (lawyer impliedly authorized to disclose certain information without client consent);
- ABA Informal Ethics Op. 89-1530 (1989) (using foreseeability analysis to evaluate whether lawyer’s disclosure was impliedly authorized);
- ABA Informal Ethics Op. 86-1518 (1986) (interpreting exception for impliedly authorized disclosures as permitting lawyer to disclose to opposing counsel, without client consultation, inadvertent omission of contract provision);
- Ark. Ethics Op. 96-1 (1996) (noting that in real estate transactions, many disclosures, including ones to obtain title insurance, are impliedly authorized; many documents become public records, and other parties to transaction receive information such as purchase price, offer amount, amount accepted, and condition of property);
- Haw. Ethics Op. 38 (1999) (lawyer may disclose information relating to representation of deceased client if doing so would effectuate client’s estate plan);
- Kan. Ethics Op. 01-01 (2001) (lawyer whose client inherited property from former client is impliedly authorized to disclose information from deceased client’s file to effectuate inheritance);
- Lawyer Disciplinary Bd. v. McGraw, 461 S.E.2d 850 (W. Va. 1995) (state attorney general not impliedly authorized to disclose to third party that state agency was changing its position on environmental issue, notwithstanding that lawyer had been directed to file public pleading in future);
- In re Mandelman, 182 Wis. 2d 583, 514 N.W.2d 11 (1994) (lawyer violated Rule 1.6 when he asked other lawyers for help on several client matters and transferred client files without seeking clients’ consent);
- Mont. Ethics Op. 050621 (2005) (criminal defense lawyer may not, without client’s prior consent, tell judge or prosecutor whether client has contacted him, even though client’s bond was conditioned on regularly phoning defense lawyer);
- ABA Formal Ethics Op. 93-370 (1993) (unless client consents, lawyer should not reveal to judge – and judge should not require lawyer to disclose – client’s instructions on settlement authority limits or lawyer’s advice about settlement).
See generally Restatement (Third) of the Law Governing Lawyers § 61 (2000) (permitting disclosure that advances client’s interests).
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.
The above examples give some guidance to lawyers. However, each situation will depend on the facts and circumstances involved. Lawyers should try to anticipate, as much as possible, situations that will require the disclosure of confidential information and obtain informed consent from the client to disclose that information. An article on informed consent for disclosure of confidential information will appear in the November Wisconsin Lawyer.