If a lawyer is genuinely unsure whether the confidentiality rule requires revealing a client's confidences to prevent the client from causing substantial financial or property harm to someone else, will the lawyer be disciplined either way?

Plain-English summary

Opinion E-89-9 asked whether a lawyer must reveal client confidences to prevent a client's act when the lawyer entertains a reasonable doubt about either the criminal or fraudulent status of the act, or the likelihood that it would cause substantial injury to the financial interest or property of another. The committee began from the text of SCR 20:1.6(b), which requires a lawyer to reveal confidential information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in substantial injury to the financial interest or property of another, and referred to the "Terminology" definitions of "reasonable" and "reasonable belief."

The committee explained that, conversely, a disclosure under SCR 20:1.6(b) may not be made if the future conduct is not criminal or fraudulent, or if the lawyer does not reasonably believe the conduct likely to result in substantial injury. It then concluded that where a reasonably prudent and competent lawyer entertains a reasonable doubt regarding either or both of those elements, neither disclosure nor nondisclosure should constitute a violation of SCR 20:1.6(b). In that circumstance, the committee concluded, a lawyer should not be constrained by the threat of possible discipline in fashioning a response that best serves and balances the competing interests of the client, the lawyer, and the person whose interests may be threatened. The committee aligned itself with Professor Hazard's view that "the intermediate cases should be left to the conscientious judgment of the responsible lawyer on the scene" and Professor Wolfram's observation that matters whose legality is legitimately in doubt are precisely those clients should be encouraged to bring to their lawyers. It acknowledged that, whichever way the lawyer decides, the lawyer may still face civil suit, criminal charges, or a fee dispute or loss of the client, and concluded that the lawyer must be free under SCR 20:1.6(b) to opt for either disclosure or nondisclosure rather than have the rule arbitrarily construed to compel one result in cases of doubt. The committee referred readers to its Formal Opinions E-88-10 and E-88-11 for related disclosure issues.

Currency note

This opinion was issued in 1989, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). The confidentiality rule SCR 20:1.6 and its disclosure provisions were among the rules later revised. 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: When did SCR 20:1.6(b) require a lawyer to disclose a client's confidences?

A: Per the opinion, only when the client's act was criminal or fraudulent and the lawyer reasonably believed it was likely to result in substantial injury to the financial interest or property of another.

Q: What if the lawyer was genuinely unsure whether those conditions were met?

A: The committee concluded that where a reasonably prudent lawyer had a reasonable doubt about either element, neither disclosing nor withholding the information should constitute a violation of SCR 20:1.6(b).

Q: Who decided the close cases?

A: The lawyer. The committee concluded that intermediate cases of genuine doubt should be left to the conscientious judgment of the responsible lawyer on the scene, free of the threat of discipline either way.

Background and rules framework

The opinion interpreted SCR 20:1.6 / Model Rule 1.6 (confidentiality of information), and specifically the discretionary-disclosure standard in SCR 20:1.6(b), read together with the "Terminology" definitions of "reasonable" and "reasonable belief."

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.6(b) / Model Rule 1.6 (confidentiality of information)

Other opinions cited:

• Wisconsin Formal Op. E-88-10; Wisconsin Formal Op. E-88-11
• Hazard & Hodes, The Law of Lawyering 102 (1982, 1988 Supp.); Wolfram, Modern Legal Ethics 280 (1986)

See also

• WI Ethics Op. E-89-11: Confidences of a Deceased Client
• WI Ethics Op. E-89-12: Reporting Opposing Counsel
• WI Ethics Op. E-90-3: Client Identity on IRS Form 8300

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-89-9.pdf