You have spoken often about the importance of keeping client information confidential. What do you find to be the most challenging consideration of client confidentiality?
Keeping client information confidential is a mainstay of the attorney-client relationship. When comparing the attorney-client relationship with relationships that an individual may have with other professionals, there are very few relationships for which the client information is so protected and the confidentiality of the information is so important. At times, client confidentiality is challenging for a lawyer but it is also a vital part of any client representation, ensuring that the information given by the client is complete, accurate, and protected.
The most challenging aspect of client confidentiality is the fact that all client information learned during the course of representation is considered confidential and should not be disclosed to any other person unless one of the exceptions for disclosure applies. This requirement is found in SCR 20:1.6 (part of the Wisconsin Rules of Professional Conduct), which provides that all information learned during the course of representation (whether learned from the client or learned from someone else during the representation) is considered client confidential information and must not be disclosed to anyone. There are some exceptions, such as information impliedly authorized to be disclosed to provide representation or when the client gives informed consent for the disclosure of confidential information, but the exceptions are to be applied very narrowly.
It used to be that lawyers had to protect client information that could cause harm to the client if disclosed, but that concept has been replaced with the language in SCR 20:1.6 that protects all information learned by the lawyer during the course of representation regardless of the source of the information. The majority of client information will come from the client, but information also comes to the lawyer through various aspects of the representation and still must be considered confidential information.
Lawyers struggle with this nearly absolute ban on the disclosure of information. It is hard not to discuss client information with others, but the first thought should be to protect the confidentiality of the client information. Sharing client information with other lawyers in a law firm is acceptable because the confidentiality rule applies to everyone within the law firm, and the sharing of information allows for better representation of the client. It is important, however, that each lawyer start from the absolute premise that any information learned by the lawyer during the representation must be kept confidential and not disclosed to anyone.
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» Cite this article: 94 Wis. Law. 39 (October 2021).