March 16, 2022 – Government lawyers, including prosecutors, do not necessarily work with individuals as clients. So, how are the confidentiality rules different for them?

Question

I work as a prosecutor, and have a colleague who is preparing for trial in a high-profile prosecution. My colleague is having strategy disagreements with another lawyer from our office who is assisting in the trial.

When I was discussing the matter with my colleague, they mentioned that they had discussed the disagreements with their spouse, who is not a lawyer who works in our office, in quite some detail.

I expressed my concern that my colleague had discussed such information with someone outside of our office, but my colleague did not see the problem, as we are prosecutors and therefore do not have a client and don’t have the same confidentiality obligations as private lawyers.

Do prosecutors have different confidentiality obligations than other lawyers?

Answer

Government lawyers have special conflicts rules (see SCR 20:1.11 – special conflicts of interest for former and current government officers and employees), and prosecutors have singular obligations (see SCR 20:3.8 – special responsibilities of a prosecutor).

However, neither of these rules sets forth any unique confidentiality obligations that apply only to prosecutors and other government lawyers.¹ SCR 20:1.6, the confidentiality rule, contains no special provisions for government lawyers.​​

These facts are based upon a recent report and recommendation of a hearing committee in a disciplinary case out of the District of Columbia (In the Matter of Amanda Haines, Disciplinary Docket 2016-D261).

In that matter, the respondent was an assistant U.S. attorney preparing for trial in a high-profile murder prosecution. While the majority of the decision discusses alleged violations of disciplinary rules based upon the respondent’s failure to turn over impeachment information about one of the prosecution’s key witnesses, the hearing committee did find that the respondent violated D.C.’s confidentiality rule by forwarding to her then-boyfriend emails between herself another prosecutor detailing strategy disputes:

Here, Respondent Haines has admitted that she violated Rule 1.6(a) by forwarding internal prosecution emails to her then-boyfriend. These were contentious emails showing tensions that had developed between Respondent Haines and Respondent Campoamor-Sanchez about their respective responsibilities. The emails also contained confidential information related to the government’s strategy for prosecuting the Guandique case. Respondent Haines was not authorized to disclose that information. FF 84-86. She violated Rule 1.6(a).

The recommendation of the hearing committee is not a final order of discipline, but given the respondent’s admission of a 1.6(a) violation, it seems very likely that the D.C. court will conclude that the rule was violated.

This is notable because government lawyers, especially prosecutors, are rarely disciplined for violating the duty of confidentiality.

Also noteworthy is that the respondent did not have “authorization” to forward the emails. This is in keeping with the position taken in Wisconsin Ethics Opinion EF-11-02, that prosecutors represent the state and have a client, and therefore would need the informed consent of the client before making a disclosure that was otherwise prohibited by SCR 20:1.6(a).²

In another example, in In re Harding,³ a city attorney was suspended for 90 days for, among other violations, violating his duty of confidentiality to his municipal client. The respondent was involved in a dispute with city administrators over his eligibility for a pension, and the respondent, among other things, sent a letter to the local newspaper disclosing alleged misconduct by city officials. The disciplinary agency sought a censure, but the Kansas supreme court deemed the misconduct worthy of suspension.

Government lawyers, particularly prosecutors, often have a high degree of discretion, and many disclosures are impliedly authorized under SCR 20:1.6(a) because they advance the lawful objectives of the client.

This does not mean, however, that government lawyers are free from confidentiality obligations that apply to all lawyers.

Endnotes

¹ SCR 20:1.11(c) addresses “confidential government information,” but that is a conflict rule.​

² When a lawyer needs the informed consent of an entity client such as a governmental entity, the consent must come from a person who has the legal authority to make such decisions on behalf of the entity. Who such an individual may be in any specific entity is a question beyond the disciplinary rules. See Wisconsin Ethics Op. EF-11-02.

³In re Harding, 290 Kan. 81, 223 P.3d 303 (2010).