Vol. 80, No. 10, October 2007
I know that whatever information I get from my client is confidential, but sometimes it does not seem right to have to keep things confidential. Are there exceptions to a lawyer's duty to maintain client confidentiality?
The duty of confidentiality is an extremely important duty owed to the client. The lawyer's obligation to keep things confidential is a distinguishing element of the attorney-client relationship and a critical component of the special relationship between an attorney and a client. There are, however, certain instances when a lawyer shall release confidential information and certain instances when a lawyer may release confidential information learned from a client.
The duty of confidentiality stems from SCR 20:1.6, which provides in general terms that "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…." This is the underpinning of the confidentiality requirement for all communications and information learned while representing a client, but the requirement is not absolute.
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.
Mandatory disclosure. In Wisconsin, lawyers are, under very limited circumstances, subject to an absolute duty to reveal confidential information. According to SCR 20:1.6(b), a lawyer "shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another." Under this rule, there is a mandatory disclosure requirement in the very narrow circumstance when the lawyer believes it is necessary to disclose information to prevent the client from committing a criminal or fraudulent act. The lawyer must also determine that the anticipated criminal or fraudulent act is likely to have significant consequences as defined in the rule. This requirement of disclosure of confidential information is viewed as the prospective disclosure requirement because it only applies if necessary to prevent a client from committing a criminal or fraudulent act.
Optional disclosure. Several exceptions to the confidentiality requirement are optional for the lawyer. These exceptions are found in SCR 20:1.6(c). The exceptions have been broadened by the new Rules of Professional Conduct, effective July 1, 2007, to include instances when a lawyer "reasonably believes [disclosure is] necessary to prevent reasonably certain death or substantial bodily harm." In such a situation, a lawyer may reveal information if it is necessary to prevent reasonably certain death or substantial bodily harm, regardless whether the act would be committed by the client or by someone else, if the information relates to the representation of a client. In addition, a lawyer may reveal information to "prevent, mitigate, or rectify substantial injury to financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services." Under this exception, a lawyer may reveal information that may relate to a future act or a past act that results from the client's commission of a crime or fraud that has or will cause substantial injury to the financial interests or property of another. This particular exception has both a prospective and reactive focus, because the rule allows the release of information to rectify conduct that has already taken place.
Lawyers occasionally become involved in litigation or disputes with clients. In these instances, it certainly would be unfair for the client to prohibit a lawyer from releasing information that would be necessary for the lawyer's use to defend against a claim or controversy with a client. Under SCR 20:1.6(c)(4), a lawyer may reveal information about a client if it is necessary "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." The release of information also may occur if it is necessary "to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer's representation of the client." This exception allows the lawyer to defend herself if a controversy arises with the client or the client makes a claim involving the representation provided by the lawyer. In the article "Client Misconduct as a Defense to Legal Malpractice Actions," elsewhere in this magazine, the author provides an excellent discussion regarding defenses that a lawyer can raise if a client claims the lawyer has committed malpractice. The duty of confidentiality does not apply in instances when a lawyer is required to defend himself against a claim from a client for malpractice, because such defense constitutes responding "to allegations in any proceeding concerning the lawyer's representation of the client."
A new provision in SCR 20:1.6 allows a lawyer to reveal information "to secure legal advice about the lawyer's conduct under these Rules." SCR 20:1.6(c)3. This provision, effective July 1, 2007, clearly allows a lawyer to discuss confidential information related to a client or representation if the goal of the discussion is to secure legal advice about the lawyer's conduct under the Rules of Professional Conduct. This rule allows a lawyer to disclose confidential information when contacting the State Bar Ethics Hotline for advice on compliance with the rules.
Lawyers must always remember that the duty of confidentiality is held at the highest level in the attorney-client relationship. There are exceptions to the duty of confidentiality, but those exceptions must be narrowly applied and used only in those instances when it is clear that the exception to the duty actually exists.