Vol. 83, No. 12, December 2010
I read your recent articles about confidentiality of attorney-client information in the October and November issues of Wisconsin Lawyer. What are the exceptions to the confidentiality requirement?
There are several exceptions to the requirement of keeping all attorney-client information confidential. These exceptions are found in SCR 20:1.6(b) and (c). However, the exceptions are to be interpreted very narrowly and applied only in specific circumstances.
The exceptions in the rule are the following:
(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.
(c) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably likely death or substantial bodily harm;
(2) to prevent, mitigate or rectify substantial injury to the 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;
(3) to secure legal advice about the lawyer’s conduct under these rules;
(4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, 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; or
(5) to comply with other law or a court order.
One of the exceptions requires mandatory disclosure of confidential client information under designated circumstances. This disclosure requirement is not found in the ABA Model Rules of Professional Conduct but is not unique to Wisconsin; several states have a similar mandatory disclosure requirement. Mandatory disclosure is a topic that is often discussed among lawyers but rarely occurs.
The mandatory-disclosure-of-information obligation only arises in instances in which it is likely that disclosure will prevent a client from committing a criminal or fraudulent act that could result in death or substantial bodily harm to another or substantial injury to the financial interest or property of another. These circumstances do not arise often, and the lawyer must reasonably believe that the anticipated conduct of the client will result in those dire consequences. Lawyers must be very sure that the circumstances are properly identified and fully determined to apply before engaging in the mandatory disclosure of client confidential information.
Dean R. Dietrich
, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.
A number of exceptions allow for discretionary disclosure of client confidential information. Many of the exceptions only apply in instances in which some type of harm could result to another if the confidential information is not disclosed in some manner to address the anticipated or past conduct of the client. The exceptions that permit discretionary disclosure allow the lawyer to take action to prevent conduct (not just of the client) that could result in death, substantial bodily harm, or substantial injury to the financial interest or property of another. The exception also applies to allow a lawyer to seek legal advice about his or her conduct under the Rules of Professional Conduct. Such inquiries are often made to the State Bar Ethics Hotline. (Call Ethics Counsel Tim Pierce at (800) 444-9404, ext. 6168.)
An exception also exists to allow a lawyer to disclose client information in a controversy between the lawyer and a client or to establish a defense to some type of criminal or civil claim that is based on the lawyer’s conduct. This exception is often used when a lawyer’s conduct is challenged either by a client or by another party. Lawyers also must be careful to only disclose confidential information to the extent necessary under one of these exceptions to address the particular situation or circumstance that has arisen.
As noted, these exceptions are to be applied on a very limited and narrow basis. The importance of attorney-client confidentiality cannot be overstated. The Wisconsin Supreme Court acknowledged this in an attorney discipline decision in which it held that discipline should be issued to a lawyer who released information from a client file, even though the lawyer believed the release of the information was necessary to help the client avoid a criminal prosecution. In re Disciplinary Proceedings Against O’Neil, 2003 WI 48, 261 Wis. 2d 404, 661 N.W.2d 813.