Wisconsin Lawyer: Ethics: Electronic Lists: Protect Client Confidentiality When Seeking Advice:

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    Ethics: Electronic Lists: Protect Client Confidentiality When Seeking Advice

    Lawyers must take care to not breach client confidences when discussing specific legal matters on electronic lists and in other settings.

    Dean R. Dietrich

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    I participate in several electronic lists where we discuss legal questions and sometimes talk about pending cases. Is this acceptable?

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    The sharing of general information about legal issues, and even about client matters, is a way for lawyers to gain knowledge and experience in representing clients. There is concern, however, about the practice of discussing specific cases. Even a discussion conducted “off-line” (instead of involving the entire electronic-list group in discussion) can create ethical dilemmas, so lawyers need to be careful about such discussions.

    The primary concern in a discussion about a specific client matter on an electronic list is that a lawyer will disclose confidential information about a client. SCR 20:1.6 is the specific rule addressing the confidentiality of client information. This rule applies to all information related to the representation of a client, even if the information is known to the general public. A lawyer may violate the rule’s confidentiality requirements if the lawyer discloses information about the representation that is not authorized by the client or that does not fall within one of the narrow exceptions to the rule.

    Dean R. Dietrichcom ddietrich ruderware Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is past chair of the State Bar Professional Ethics Committee.

    One of the rule’s exceptions (SCR 20:1.6(c)(3)) allows a lawyer to discuss confidential client information if the lawyer is seeking advice about adhering to the Rules of Professional Conduct. This exception allows a lawyer to contact the State Bar Ethics Hotline to ask about compliance with the Rules of Professional Conduct and to be specific about the situation at issue. This exception does not, however, apply when a lawyer is asking for advice or seeking input from other lawyers on an electronic list about legal issues and not ethical questions. Thus, if a lawyer discusses a client’s confidential information on an electronic list, the lawyer technically is violating the requirements of client confidentiality in SCR 20:1.6.

    Often, a lawyer will pose a question on an electronic list and then ask other list subscribers to communicate off-line, meaning directly with the lawyer posing the question. These types of communications are certainly better, because of the one-on-one nature of the conversation. There are, however, two potential concerns with these more private communications. First, the question of client confidentiality remains; the lawyer may not disclose confidential information about a client representation without permission from the client. A discussion in general terms about a representation, or a hypothetical discussion about a representation, provides some flexibility for the inquiring lawyer, but care must be taken to ensure that information is not given with such specificity or detail that the client can be readily identified.

    The second concern is the possible creation of an attorney-client relationship between the client of the inquiring lawyer and the responding lawyer. Again, this issue should not arise if the information is not specific to a particular client and the client is not identified. If the client is identified or the information is so specific as to permit identification of the client, the responding lawyer may be creating an attorney-client relationship by giving direct advice to the inquiring lawyer about how to handle a particular matter. Some lawyers will provide the advice only after doing a conflicts check to make sure there is no issue in providing the information to the inquiring lawyer. Performing a conflicts check is a very deliberate process, one that both lawyers often will choose not to undertake.

    There is a fine line between giving general legal advice or practice tips to another lawyer and giving advice to another lawyer on how to handle a particular representation. Lawyers must be careful to limit their discussions to general information about client representation, and avoid situations in which they identify the client and potentially create a new attorney-client relationship. Nevertheless, it also is important that lawyers participate in these communications, to help other lawyers be successful; doing so is part of being a professional and giving back to the profession.




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