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Devon Lee Guest Posts: Communicating publicly-known information about your client

The Wisconsin Supreme Court recently denied Rule petition 15-04, which sought to amend SCR 20:1.9 governing a lawyer’s duties to her former clients. In this post, SPD Legal Counsel, Devon Lee, explains that the current rule does not prevent the types of communications highlighted by the petitioners.

The petition proposed an amendment to SCR 1.9(c) which reads:

A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.  

The petition proposed to add to SCR 20.1.9(c)(1) a definition of “generally known.” The petitioners suggested that “generally known” information be defined as “information that includes information that is publicly available or has been disclosed in a public forum.”  It further proposed to clarify under (c)(2) that information that is generally known “has already been revealed.”

According to the petitioners, the rule as it currently exists prevents an attorney from discussing, writing about, or otherwise disclosing even public information his or her closed cases.  See supporting memorandum here. The petitioners argued that this ban on use of information prevents attorneys from disclosing information when making a mandatory report under SCR 20:8.3(a), from training other lawyers, discussing a case when it is in the public interest, and exercising their first amendment rights. The petitioners argued that Rule 20:1.9 does not advance the policy reasons for having a confidentiality rule.

The Office of Lawyer Regulation (“OLR”) and the State Bar Professional Ethics Committee (“Ethics Committee”) urged the supreme court not to amend the rule.  See State Bar’s response here. The OLR disagreed with the petitioners’ definition of “generally known.” The Ethics Committee (of which I am a member) agreed with the OLR and did not believe that the current rule posed the problems suggested by petitioners. The Ethics Committee was concerned that the proposed amendments could harm former clients because the proposed rule would permit lawyers to use or disclose information about a former client if it had been “disclosed in a public forum.”  The Ethics Committee noted that SCR 20:1.9(c) is consistent with the ABA Model Rules and the rules of other jurisdictions. Of particular concern was the possibility that a lawyer could use information learned during the course of representation of a former client to the detriment of the former client if the information is publicly known.  

“Generally known” is one of those terms that seems simple but is deceptively challenging to define.  Is any information that is “publicly available” by definition “generally known?” What role does technology play in the evolution of that term? Information that wasn’t generally known twenty years ago is easily accessible through CCAP today.

The Supreme Court denied the petition on July 21, 2016, concluding that it was not persuaded that changing the rule or adding to the existing comments was warranted.  See order denying petition here. In explaining its rationale for denying the petition, the court acknowledged the challenge of defining “generally known.”  Given that the court voted 4-3 to deny the petition (Justices Shirley Abrahamson, Ann Walsh Bradley, and David Prosser opposed the motion to deny the petition), it is an issue that may be revisited as how information becomes generally known continues to change.

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