Aug. 5, 2020 – Contact tracing has become a part of our daily conversations. Although the term is now associated with the COVID-19 pandemic, contact tracing is a public health strategy that has been used for decades in the fight against communicable diseases.

Contact tracing is the process of finding out who has recently been in close contact with a person infected with a communicable disease. It involves contacting those people to let them know they may have been exposed and guiding them on what to do next.¹

While contact tracing itself is not new, its renewed use during the coronavirus pandemic raises new questions for lawyers regarding their ethical duties of communication and confidentiality. You may have questions like these:

• If I test positive, do I need to contact the clients and ask permission to disclose their identity?

• What if the client says I cannot disclose?

To answer these questions, we first need to know some basic information about the process of contact tracing.

When a Contact Tracer Calls

The Wisconsin Department of Health Services (DHS) has posted information about contact tracing on its webpage, COVID-19: State Emergency Operations Response.

DHS wants you to feel comfortable if you get a call from one of the contact tracers. All contact tracing team members have received training in and demonstrated understanding of the Health Insurance Portability and Accountability Act (HIPAA) and the Wisconsin Electronic Disease Surveillance System (WEDSS). WEDSS is the secure system that handles the reporting, investigation, and monitoring of the information DHS receives. DHS will never ask you for credit card, bank account numbers, or Social Security numbers. DHS will never send you a text with a link to click.

When they call, DHS staff will always identify themselves as representatives of state or local public health departments. They will verify with whom they are speaking. Once they verify that they are speaking with the right person, they will explain why they are calling.

While DHS contact tracers will tell you that you have been exposed, they will not identify the person with whom you were in contact or where the contact might have happened.

DHS contact tracers will ask you for your name, address, phone number, email, gender, and race or ethnicity, and whether you have any symptoms. The contact tracer will go through quarantine recommendations and sign you up for self-monitoring.

Chapter 252: Statutory Requirement to Report

In addition to the information about contact tracing provided by DHS, lawyers should also be familiar with their statutory obligations.

Wis. Stat. chapter 252 governs communicable diseases. Section 252.05(3) requires:

[a]nyone having knowledge or reason to believe that any person has a communicable disease shall report the facts to the local health officer or to the department.

If a violation of this section is reported to a district attorney by a local health officer or by the department, section 252.05(11) requires that “the district attorney shall forthwith prosecute the proper action, and upon request of the department, the attorney general shall assist.”

This basic information about both contact tracing and the statutory obligations concerning communicable diseases is information that lawyers need to fulfill their ethical obligations of communication and confidentiality.

The Lawyer’s Ethical Duties of Communication and Confidentiality

The lawyer’s duty of communication, pursuant to SCR 20:1.4, requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation.”

So, before meeting with a client in person, a lawyer should provide information to the client about contact tracing and the statutory obligations concerning communicable diseases. Clients need this information to make an informed decision about meeting with the lawyer in person or remotely, if possible.

Moreover, the rule also requires the lawyer to promptly inform the client of any decision or circumstance where a client's informed consent is required, such as the disclosure of information protected by the duty of confidentiality.

The lawyer’s duty of confidentiality is governed by SCR 20:1.6. Paragraph (a) states:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c).

Client identity and contact information are protected by the duty of confidentiality.² Consequently, for a lawyer to disclose client identity and contact information, the lawyer must obtain the client’s informed consent, or the information must fall within one of the exceptions discussed below.

Obtaining a Client’s Informed Consent

A lawyer may disclose client identity and contact information with the client’s informed consent. To obtain the client’s informed consent, as defined in SCR 20:1.0(f), the lawyer must communicate adequate information and explanation about the material risks of and reasonably available alternatives to the proposed disclosure.

If a lawyer wishes to obtain the client’s informed consent to disclose the client’s identity and contact information to contact tracers, the lawyer should, prior to the in-person meeting, adequately explain to the client:

• procedures used by DHS for contact tracing;

• the statutory obligations concerning communicable diseases; and

• the material risks of disclosing the client’s identity and contact information to the contract tracers should the lawyer or a member of the lawyer’s firm become infected with COVID-19.

While SCR 20:1.6 does not require that the informed consent be in writing, a best practice is to obtain the informed consent in writing signed by the client.

Two Possible Exceptions: When Disclosure Without Consent Is Permitted

A lawyer may disclose information relating to the representation of a client without the client’s consent if the information falls within the enumerated exceptions in SCR 20:1.6. Two of the exceptions permit a lawyer to disclose a client’s identity and contact information to contact tracers without the client’s informed consent.

One exception, SCR 20:1.6(c)(5), permits – but does not require – a lawyer to disclose information relating to the representation of a client to the extent the lawyer reasonably believes necessary to comply with other law or court order. Paragraph (c)(5) recognizes that other law may require a lawyer to disclose information about a client. Whether the other law supersedes the general rule prohibiting disclosure is a question of law beyond the scope of the Rules of Professional Conduct.³ Because the Rules provide little guidance for lawyers faced with determining whether the other law supersedes the duty of confidentiality, lawyers should rely on their research of the other law and their analysis of the particular circumstances.

When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client as required by SCR 20:1.4. If, however, the other law supersedes SCR 20:1.6 and requires disclosure, paragraph (c)(5) permits the lawyer to make such disclosures as are necessary to comply with the law, even without the client’s consent.

If Wis. Stat. section 252.05(3) – which requires that anyone having knowledge or reason to believe that any person has a communicable disease to report the facts to the local health officer or to the department –  supersedes the general rule prohibiting disclosure, then paragraph (c)(5) would permit, but not require, disclosure. Lawyers should keep abreast of changes in the laws, such as executive or court orders, regarding contact tracing for COVID-19.⁴

A second exception, SCR 20:1.6(c)(1), permits – but does not require - a lawyer to disclose information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably likely death or substantial bodily harm.

ABA Comment [6], which follows SCR 20:1.6, provides guidance:

Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims.

When a lawyer or someone in the lawyer’s office has tested positive for COVID-19, the question for the lawyer is whether death or substantial bodily harm is reasonably likely to occur if the lawyer fails to provide a client’s identity and contact information to the contact tracers. While the contact tracing may not prevent the client from contracting COVID-19, it may prevent others from contracting the virus from the client. Unfortunately, this question is not easily answered. Our knowledge and understanding of COVID-19 continues to develop, and there is some disagreement about the best responses to the pandemic. Once again, lawyers should rely on research and analysis of their particular circumstances.

Conclusion: Informed Consent Is Best

Obtaining clients’ informed consent to the disclosure of their identity and contact information for purposes of contact tracing is the best practice. It provides the opportunity for the lawyer to adequately explain the procedures used by DHS for contact tracing, the statutory and other legal obligations concerning communicable diseases, and the material risks of disclosing the client’s identity and contact information to the contract tracers should the lawyer or a member of the lawyer’s firm become infected with COVID-19. It provides clients with the opportunity to discuss their concerns and to make an informed choices about their representation, such as whether to meet with the lawyer in person and whether to consent to the disclosure of their identity and contact information.

In the absence of client consent, a lawyer may disclose client identity and contact information, but should proceed cautiously. SCR 20:1.6(c)(5) permits, but does not require, a lawyer to disclose the information to the extent reasonably necessary to comply with other law or court order. The question of whether other law or court order supersedes the duty of confidentiality requires careful analysis of the law and particular circumstances.

Similarly, SCR 20:1.6(c)(1) permits, but does not require, a lawyer to disclose the information to the extent reasonably necessary to prevent reasonably likely death or substantial bodily harm. The question of whether death or substantial bodily harm is reasonably likely to occur if the lawyer fails to provide a client’s identity and contact information to the contact tracers requires careful analysis of the law and the particular circumstances.

Endnotes

¹ For more detailed information about how contact tracing works, see the Centers for Disease Control and Prevention (CDC) webpage on contact tracing.

² See Wisconsin Formal Ethics Opinion EF-17-02.

³ ABA Comment [12] following SCR 20:1.6.

⁴ Resources for keeping abreast of COVID-19 developments, including executive orders, are available on the State Bar’s Coronavirus Updates & Resources webpage.