Must a lawyer keep confidential damaging information about a client that the lawyer learned during the representation, even if it came from public sources?
Apply this to your situation
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.
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
- WI Ethics Op. E-89-9: Disclosing Confidences to Prevent Financial Injury
- WI Ethics Op. E-89-11: Confidences of a Deceased Client
- WI Ethics Op. EF-17-02: Confidentiality of Client Identity
- WI Ethics Op. E-90-3: Disclosure of Client Identity to the IRS
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-85-10.pdf
Get today's answer for your situation
You just read a 1985 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.