Wisconsin Lawyer
Vol. 83, No. 11, November 2010

Question

I want to obtain consent from my client to disclose certain confidential information needed as part of the representation of the client. What information must I share with the client to get permission to disclose confidential information?

Answer

A lawyer must receive informed consent from the client when obtaining permission from a client to take certain actions or to provide for a client decision on particular matters, including the disclosure of confidential information.

Informed consent is defined in SCR 20:1.0(f) as follows:

“‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The lawyer must be very careful when explaining to the client what the consequences are of the disclosure of confidential information. According to the Annotated Model Rules of Professional Conduct (Sixth Edition),

“Informed consent requires an understanding of the risks and benefits attendant upon disclosure. In the context of Rule 1.6, relevant issues include whether disclosure could result in waiver of the attorney-client privilege, or in further dissemination or use of the information. See ABA Formal Ethics Op. 01-421 (2001)
(‘[t]he disclosure to the client-insured in order to obtain informed consent within the meaning of Rule 1.6 must adequately and fairly identify the effects of disclosure and non-disclosure on the client’s interests,’ including risk that information may then be disclosed to others, that lawyer-client privilege may be waived, and that information could be used to client’s disadvantage);

“see also McClure v. Thompson, 323 F.3d 1233 (9th Cir. 2003) (even if criminal defense lawyer had client’s consent to disclose to authorities locations of two murder victims’ bodies, consent not ‘informed’ as lawyer had not advised client about potential harmful consequences of disclosure);

“Banner v. City of Flint, 136 F. Supp. 2d 678 (E.D. Mich. 2000) (lawyer who obtained confidences from initial consultation with prospective client violated Rule when he deposed her in another matter without explaining availability of attorney-client privilege), aff’d in part, rev’d in part, 99 F. App’x 29 (6th Cir. 2004) (affirming district court’s finding of Rule 1.6 violation, court held Rule requires lawyer to advise client ‘about the advantages and disadvantages of revelation in language the client can understand’), cert. denied, 543 U.S. 926 (2004);

“Commonwealth v. Downey, 842 N.E.2d 955 (Mass. App. Ct. 2006) (murder defendants did not give informed consent for lawyers to wear body microphones during trial at request of television production company; neither lawyer had explained arrangement’s ‘potential pitfalls’). See Rule 1.0(e) and its Comment for a definition and discussion of informed consent.”

Lawyers are also allowed, under limited circumstances, to disclose confidential information without client consent. One of the exceptions that allows disclosure is found in SCR 20:1.6(c)(5), which provides as follows:

“A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

...

“(5) to comply with other law or a court order.”

This language has allowed lawyers to disclose confidential information under certain circumstances. The comment to Model Rule 1.6 gives guidance to lawyers on how to proceed under this exception:

Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

“(12) Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this rule and requires disclosure, paragraph
(b)(6) [SCR 20:1.6(c)(5) in Wisconsin] permits the lawyer to make such disclosures as are necessary to comply with the law.”

A lawyer also may disclose information if ordered to do so by a court. Comment 13 to Model Rule 1.6 provides further guidance:

“A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or government entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all non-frivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) [SCR 20:1.6(c)(5) in Wisconsin] permits the lawyer to comply with the court’s order.”

The Annotated Model Rules of Professional Conduct (Sixth Edition) gives additional guidance regarding the exception that allows disclosure to comply with other law or a court order, including the exception’s history:

“In 2002, a new exception was added to Rule 1.6, permitting disclosure ‘to comply with other law or a court order.’ Previously, the Comment addressed this issue; the amendment specifically allowing disclosure was not intended as a substantive change. American Bar Association, A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2005, at 126 (2006);

“see, e.g., United States v. Legal Servs., 249 F.3d 1077 (D.C. Cir. 2001) (appropriations act requiring federally funded legal aid organizations to give client names to auditors triggered required-by-law exception to state’s confidentiality rule);

“N.C. Ethics Op. 2005-9 (2006) (lawyer for public company may reveal confidential information about corporate misconduct to SEC under permissive-disclosure regulations authorized by Sarbanes-Oxley Act, even if disclosure would be prohibited by state’s ethics rules);

“see also Md. Ethics Op. 2002-31 (2002) (lawyer may comply with trial court’s order to produce confidential information about former client, even though order subject to appeal);

“cf. Va. Ethics Op. 1811 (2005) (contractual obligation to reveal information did not trigger exception; ‘law’ within meaning of Rule 1.6 exception for ‘law or a court order’ includes ‘statutory, judicial and administrative items, but not contracts or agreements between private parties’).”

Lawyers must provide specific types of information to a client when asking the client to disclose confidential information. The sanctity of the attorney-client confidentiality rule must be upheld by the lawyer as much as possible. An article on the exceptions in the confidentiality rule will be included in the December 2010 Wisconsin Lawyer.

Wisconsin Lawyer