Vol. 75, No. 8, August
2002
Client Confidentiality Exceptions
Lawyers' Duty of Client Confidentiality
The client confidentiality rule is of utmost
importance; however, the duty has limited exceptions that apply under
very narrow circumstances.
by Dean R. Dietrich
Dean R.
Dietrich, Marquette 1977, of Ruder, Ware & Michler
L.L.S.C., Wausau, is chair of the State Bar Professional Ethics
Committee.
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.
Opinions and advice of
the Professional Ethics Committee, its members, and assistants are
issued pursuant to State Bar Bylaws, Article IV, Section 5. Opinions and
advice are limited to the facts presented, are advisory only, and are
not binding on any court, the Office of Lawyer Regulation, or State Bar
members. Attorneys with questions on professional ethics issues may
contact the Ethics Hotline at (800) 444-9404, ext. 6168; or (608)
250-6168 (all day Wednesday); and (608) 629-5721 on Monday, Tuesday,
Thursday, and Friday mornings. Send written requests for Professional
Ethics Committee opinions to the Professional Ethics Committee, c/o
Keith Kaap, State Bar of Wisconsin, P.O. Box 7158, Madison, WI
53707-7158.
Wisconsin
Lawyer