Vol. 75, No. 8, August 2002

Client Confidentiality Exceptions

Lawyers' Duty of Client Confidentiality

by Dean R. Dietrich

Question

I have heard recent debate about the exceptions to a lawyer's duty of confidentiality to a client. What are these exceptions?

Answer

The Model Rules of Professional Conduct and the Wisconsin Supreme Court Rules of Professional Conduct for Attorneys both acknowledge the importance of confidentiality of client information. SCR 20:1.6 provides a very distinct rule that "a lawyer shall not reveal information relating to representation of a client unless the client consents after representation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d)."

While this rule creates a mandatory duty of nondisclosure, there are exceptions that a lawyer must consider. Many of the exceptions are discretionary, such as a lawyer may reveal information to the extent reasonably necessary to rectify the consequences of a client's criminal or fraudulent act that occurred through the use of the lawyer's services or to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. There are, however, two major exceptions to the strict rule of confidentiality that require mandatory disclosure by a Wisconsin lawyer.

Preventing a client from committing a criminal or fraudulent act. SCR 20:1.6(b) requires that a lawyer reveal "such information 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."

There are obviously several qualifying factors in this mandatory disclosure provision. The lawyer must reasonably believe that the disclosure of confidential client information is necessary to prevent the client from committing a criminal or fraudulent act. The lawyer also must reasonably believe that the criminal or fraudulent act that the client may commit is likely to result in death or substantial bodily harm to another or substantial injury to the financial interest or property of another. Under both of these factors, a burden is placed upon the lawyer to reasonably believe it necessary to take the action to prevent the client from committing an act and reasonably believe that the act will result in death, substantial bodily harm, or substantial injury to financial or property interest. Unfortunately, there is no better guidance to these determinations than the good faith belief of the lawyer.

Candor toward a tribunal. Another exception to the general rule of client confidentiality is found in SCR 20:3.3 - Candor toward the tribunal. Under this rule, a lawyer shall not knowingly "offer evidence that the lawyer knows to be false." Further, "if a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures." Under this rule, a lawyer also shall not knowingly "fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client."

These duties, including the duty to take reasonable remedial measures, are applicable even if the action that must be taken by the lawyer would require disclosure of information otherwise protected by Rule 1.6 (SCR 20:3.3(b)). Thus, a lawyer has an obligation to correct a situation where evidence has been offered by the lawyer that is known to be false, and that action must be taken even though the lawyer would be required to disclose information protected by the client confidentiality rule. Of course, this rule signifies the importance of the lawyer's duty to the court as an officer of the court. That duty will supersede the duty of client confidentiality when the lawyer discovers that false evidence has been offered in the proceeding. The duty to take remedial measures is subject to the materiality consideration, such that the lawyer must only take reasonable remedial action if the evidence is material to the proceeding.

The ABA Commission on Model Rules (Ethics 2000) considered modifications to Model Rule 1.6 that would provide a discretionary obligation for lawyers to disclose client information if the disclosure would prevent death or substantial bodily harm to another. This proposed rule change created a significant amount of debate at the ABA House of Delegates and portions of the proposed rule change were not approved. Since Wisconsin's Supreme Court Rules provide for mandatory disclosure of client information under limited circumstances, it is not anticipated that the Ethics 2000 recommendations will impact Wisconsin lawyers. The Wisconsin Supreme Court will appoint a study committee this fall to review the recommendations from the ABA Ethics 2000 Commission to consider modifications to the Wisconsin Supreme Court Rules of Professional Conduct for Attorneys.

Lawyers initially must remember that the client confidentiality rule is of utmost importance as one of the duties of lawyers to their clients. This duty of confidentiality, however, does have limited exceptions that apply under very narrow circumstances. Lawyers should be aware of, and not forget, those limited circumstances when the lawyer must override the general duty of client confidentiality to address the other significant instances where disclosure of client information may be necessary.

Wisconsin Lawyer