Question

I recently heard that I could disclose a client’s name in order to resolve questions about a conflict of interest. What are the limits to disclosing this information?

Answer

The Wisconsin Rules of Professional Conduct were recently amended to allow lawyers to disclose the name of a client when seeking to resolve a question of whether a conflict of interest exists. However, the goal is to limit the disclosure of information as much as possible to make sure that confidentiality is protected and no harm flows to a client as a result of a lawyer’s release of information.

The recent amendments to Wisconsin Supreme Court Rules chapter 20 took effect on Jan. 1, 2017. A change to SCR 20:1.6 regarding confidentiality of client information has given some limited flexibility to lawyers to disclose the name of a client if necessary to determine if a conflict of interest exists. Subsection 20:1.6(c)(6) was added to the Rules of Professional Conduct and provides as follows.

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

“(6) to detect and resolve conflicts of interest, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.”

The purpose of this change is to allow a lawyer to disclose confidential information about the name of a client if doing so is necessary to resolve whether a conflict of interest exists for the lawyer to potentially represent another party. These types of disclosures can take place without limitation among lawyers in the same law firm, but often a lawyer is required to seek more information from outside the protections of the law firm and the confidentiality rules. In the latter situations, if a conflict question arises and a lawyer has to disclose the name of a client or perhaps the nature of the representation, the lawyer may disclose the name of the client and very little else when trying to determine whether the lawyer has a conflict of interest. It may be necessary to very briefly describe the nature of the lawyer’s representation of the client to determine whether representation of that client would be adverse to the potential representation of another party.

The disclosure must be very limited and the lawyer must be careful not to disclose any type of information that could be harmful to the existing client.

In summary, the confidentiality rule (SCR 20:1.6) has been amended to allow a limited exception for disclosure of limited information about a client when a lawyer is trying to determine if a conflict of interest exists when considering the representation of another party. The disclosure must be very limited and the lawyer must be careful not to disclose any type of information that could be harmful to the existing client.

This exception should help lawyers determine whether they have a conflict of interest when seeking to represent a new party, but it is also important that the lawyer protect the existing client from the disclosure of information that would be harmful to the existing client. There may be some instances when even the disclosure of the name of the client cannot occur (such as when the client insists that the representation not be disclosed to others), which would then prevent the lawyer from properly determining whether a conflict of interest exists.