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 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 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.