The supreme court rejects OLR’s attempt to discipline a lawyer who disclosed confidential client information in advance of a Machner hearing, finding the context in which the disclosure was made to be “of critical importance” to its determination (¶26) while also reminding lawyers to “proceed with caution when considering disclosure of confidential client information in response to a claim of ineffective assistance of counsel” (¶1).
Thompson was trial counsel for Derek C., who sought postconviction relief after being convicted at trial. (¶¶2-5). Postconviction counsel filed a postconviction motion that “was utterly sweeping in its criticism” of Thompson’s representation. (¶¶8, 47). Before the hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979), postconviction counsel asked the circuit court to declare Thompson to be an adverse witness. (¶9). Concerned his opportunity to testify would be limited, Thompson asked the judge for a chance to respond to postconviction counsel’s motions. (¶10). The judge granted Thompson’s request, and Thompson submitted a lengthy letter. (¶¶10-11). The letter “was thorough in its response and admittedly scathing of both his former client and [postconviction counsel].” (¶34). (The disciplinary proceeding referee, whose statement of facts the court accepts, described the letter in far harsher terms. (¶¶21, 39-40).)
Because Derek C. did not consent to the disclosures in the letter, OLR filed a complaint alleging Thompson violated SCR 20:1.6(a) and 20:1.9(c)(1) and (2). (¶¶17, 25). SCR 20:1.6 prohibits nonconsensual disclosure of confidential information, but does permit disclosure “to the extent the lawyer reasonably believes necessary” to respond to ineffective assistance allegations, SCR 20:1.6(a) and (c)(4). This is a narrowly tailored exception. Any disclosure under this exception that is “adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.” SCR 20:1.6, ABA cmt. . (¶38). And “it is not enough that Attorney Thompson genuinely believed the particular disclosure was necessary; the lawyer’s belief must be objectively reasonable.” (¶38).
The court concludes Thompson’s disclosures were permissible (¶¶38-49), but it emphasizes that the context in which they were made is “of critical importance to our determination” (¶26). Two aspects of the context are crucial: 1) the “sweeping criticism” of Thompson in the postconviction motion, which meant “[i]t was foreseeable that responding, even in a limited way, to each of the many allegations of misconduct would necessitate significant disclosures” (¶47); and 2) Thompson sought and received permission from the judge to respond (¶¶33, 49). However, the court rejects OLR’s reliance on ABA Formal Opinion 10-456 (July 14, 2010), which concludes that a lawyer accused of ineffective assistance of counsel by a former client cannot disclose confidential information to defend against the claim “unless the disclosure is made in a court-supervised setting.” The language of SCR 20:1.6 doesn’t limit permitted disclosure to a court-supervised setting and, in any event, Thompson wrote his letter before the Formal Opinion was issued, thus making its “ethical guidance” unavailable to him. (¶¶35-37).
While it declines to impose the ABA Opinion’s restriction on SCR 20:1.6, the court tells lawyers to “be mindful of continuing ethical obligations to former clients” (¶37) and issues a warning:
¶50 We caution lawyers that a former client’s pursuit of an ineffective assistance of counsel claim “does not give the lawyer carte blanche to disclose all information contained in a former client’s file.” See 2011 Formal [Ethics] Op. 16, North Carolina State Bar […] (January 27, 2012). Typically, the better practice is to wait for a subpoena and the Machner hearing before disclosing confidential client information. In the context of this particular case, we decline to hold that Attorney Thompson’s letter of September 29, 2008 violated SCR 20:1.6(a).
Justice Bradley, joined by Chief Justice Abrahamson, dissents, saying disclosure in these situations should be made in a court setting and that Thompson’s letter went beyond what was reasonably necessary to respond to postconviction counsel’s motions. (¶¶53-66).
The upshot for postconviction practice: First, while the court declines to require judicially-supervised disclosure in the Machner context, that is clearly the preferred (and safest) method, since Thompson’s seeking, and receiving, leave of the circuit court to respond effectively was judicially-supervised disclosure, and his doing so was “critical” to the court’s ruling. (¶33). Note there was an interlocutory appeal in the case holding the circuit court had the power under § 906.15(3) to limit (or allow, presumably subject to the ethics rules and the limited waiver of the attorney-client privilege under § 905.03(4)(c)) the prosecutor’s communication with trial counsel before his testimony. (¶¶12-15).
Second, Thompson was responding to “extremely broad” and “utterly sweeping” allegations. (¶¶42, 47). Keeping ineffective assistance claims as narrow and focused as possible will likewise narrow the scope of what trial counsel may reasonably disclose. And while defending one’s professional reputation is not a permitted exception to the confidentiality rule (¶44), avoiding vilification and opprobrium when stating an IAC claim may reduce trial counsel’s temptation to over-disclose to defend his or her reputation. (Both lawyers in this case are faulted on this point: postconviction counsel for undertaking a strategy that relied in part on “vilify[ing]” trial counsel (¶49), and trial counsel for writing a letter “abrasive” in tone that “expresses contempt for both his former client and successor counsel. This angry rhetoric pervades Attorney Thompson’s appellate brief, as well. ….” (¶41).)
Third, trial counsel was irked because postconviction counsel didn’t send him a copy of the postconviction motion. (¶¶31-32, 42). While postconviction counsel isn’t required to provide trial counsel with a copy of a motion alleging ineffective assistance, doing so “is advisable and a matter of professional courtesy….” (¶43). Moreover, State v. Simmons, 75 Wis. 2d 285, 297, 203 N.W.2d 887 (1973), directs that “[w]hen the competency of trial counsel is questioned, it is incumbent upon one who seeks to show that incompetency to give notice to trial counsel that his handling of a criminal matter is being questioned on post-trial or postconviction proceedings.” Giving trial counsel a copy of the postconviction motion will be both professionally courteous and discharge your duty under Simmons.