Uncontrolled Rant Not Unethical Confidentiality Violation

A majority of the Wisconsin Supreme Court has found no violation of confidentiality obligations in an attorney’s six-page letter responding to ineffective assistance of counsel allegations.

The referee had found the charged misconduct, calling the letter an “uncontrolled rant and musings about [the attorney’s] representation” of his juvenile client and the conduct of successor counsel.

The court

Our  [confidentiality] rule does not limit permissible disclosures to judicially supervised settings so we reject that aspect of the referee’s statement.  We agree that the tone of the letter is abrasive and that Attorney Thompson expresses contempt for both his former client and successor counsel.  This angry rhetoric pervades Attorney Thompson’s appellate brief, as well.  While unprofessional, it is not necessarily unethical.

We consider the context in which this letter was sent.  Attorney Thompson was affronted that Attorney Leeper did not copy him on the court filings alleging, in extremely broad terms, that he rendered Derek C. ineffective assistance and seeking to limit his testimony in response to these claims.  The referee observed that “[Attorney] Thompson was an important and essential witness at the Machner hearing, [but] he did not have the status of a ‘necessary party.'”  He was no longer counsel of record for Derek C.  As such, Attorney Leeper was not required to provide him with copies of the postconviction motions.  To the extent he thought otherwise, Attorney Thompson was mistaken.

 Generally, however, it is advisable and a matter of professional courtesy for postconviction/appellate counsel to provide former counsel with a copy of a motion alleging he or she rendered ineffective assistance.  Certainly, Attorney Leeper’s decision not to provide copies to Attorney Thompson contributed to Attorney Thompson’s belief that Attorney Leeper was improperly seeking to interfere with his opportunity to respond to the allegations.

My view is that anger towards successor counsel, whether justified or not, does not free an attorney from compliance the duty of confidentiality.

Justice Bradley, joined by Chief Justice Abrahamson, dissented

Unlike the majority, I think that the only reasonable interpretation of sub. (4) is that the disclosure of information must be in a court setting, i.e. a judicially supervised setting.  Subsection (4) allows for disclosure of information “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”  Under the facts of this case, the appropriate proceeding is the Machner hearing, where the attorney responds to allegations of ineffective representation…

Even if the majority were correct that disclosure is permitted outside of judicially supervised proceedings, it appears to me that the breadth of the disclosures in the September 29, 2008 letter went beyond the bounds reasonably necessary to respond to Thompson’s pre-Machner motions.

The attorney’s letter included, among other things, a “thorough discussion” of his early communications with the client and a parent, his view that the client was “glib” and “cocky,” and discussion of the client’s alibi defense.

If the governing principle of client-adverse disclosure is revealing no more than necessary to respond to allegations, then the court’s holding is far too disclosure-friendly.

The court majority notes that the attorney had concerns about possible perjury and no prior discipline. The first point might be relevant to violation vel non