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WISBAR 1985

Must a lawyer keep confidential damaging information about a client that the lawyer learned during the representation, even if it came from public sources?

Short answer: The opinion concluded that the lawyer must keep confidential all information relating to the representation of the client and any information acquired in the course of the representation that could be used to the client's disadvantage, regardless of whether the information came from public sources. The duty exists without regard to the nature or source of the information, and the lawyer may not use a client's confidence or secret for a third person's advantage without the client's consent after full disclosure.

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This page answers the general question as of 1985. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1985
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Opinion E-85-10 addressed a lawyer who, while defending a client on an indecent-exposure charge in County X, learned of allegations of sexual misconduct and similar complaints against the client. Almost none of this came from confidential communications with the client; most came from sources generally open to the public. The client worked for a public agency in County Y, in frequent contact with the public and young employees, and County Y's personnel officials were unaware of the allegations. The lawyer also occasionally represented County Y in personnel matters. The question was whether the lawyer was required to keep the allegations and charges confidential.

The committee concluded that the lawyer was required to keep confidential all information relating to the representation and information acquired in the course of the representation that could be used to the client's disadvantage. Citing former SCR 20.22 and Model Rule 1.6, the committee explained that the scope of protected information is information relating to the representation, that the client need not designate information as confidential, and that the duty exists without regard to the nature or source of the information or the fact that others share the knowledge (SCR 20.21(4)). A lawyer should not use information acquired in the course of representation to the client's disadvantage (SCR 20.21(5)), and may not use a client's confidence or secret for a third person's advantage unless the client consents after full disclosure. The committee noted the limited exception under SCR 20.22(2)(c) permitting disclosure of a client's intention to commit a future crime, which applies only to future acts and not to crimes already committed (citing ABA Formal Opinion 202).

Currency note

This opinion was issued in 1985, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. The confidentiality duty is now governed by SCR 20:1.6 / Model Rule 1.6, whose exceptions differ from the former Code's. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is information confidential if the lawyer learned it from public sources rather than the client?

A: The committee concluded yes. The duty applies to information relating to the representation without regard to its source or the fact that others share the knowledge.

Q: Can the lawyer use what was learned to benefit a third party, such as another client?

A: No. The committee concluded a lawyer may not use a client's confidence or secret for a third person's advantage unless the client consents after full disclosure.

Q: Did any exception let the lawyer disclose the allegations?

A: The committee noted the former exception permitting disclosure of a client's intention to commit a future crime, but explained it applies only to future acts, not to crimes already committed.

Background and rules framework

The opinion interpreted the former Code's confidentiality provisions (SCR 20.22, 20.21(4), 20.21(5)) alongside Model Rule 1.6, addressing a lawyer who held damaging information about a client and also occasionally represented an entity that might have an interest in it. The duty is now governed by SCR 20:1.6 / Model Rule 1.6.

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20.22, 20.21(4), 20.21(5) / Model Rule 1.6 (confidentiality of information) (former Code provisions)

Other opinions cited:

  • ABA Formal Opinion 202 (May 25, 1940)
  • Wisconsin Memorandum Opinion 8/76B

See also

Source

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