Is the identity of a current or former client protected by the duty of confidentiality?

Plain-English summary

Opinion EF-17-02 (April 4, 2017) addresses whether a lawyer may disclose the identity of current or former clients for reasons unrelated to the representation, such as listing representative clients in marketing materials or giving client references. The committee concludes that client identity is protected by the duty of confidentiality, and withdraws Opinion E-93-5, which had wrongly stated that client identity is not information relating to the representation.

The committee starts from the breadth of SCR 20:1.6. The rule does not sort information into "confidential" and "non-confidential" categories; it simply bars revealing information relating to the representation of a client. Quoting Comment [3], the committee notes the rule applies "not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source." The committee distinguishes the evidentiary attorney-client privilege from the ethical duty of confidentiality: the privilege governs only what may be compelled or admitted in proceedings, while SCR 20:1.6 governs what a lawyer may voluntarily reveal, and much information not covered by the privilege is still protected.

The committee answers several recurring questions in the same direction. Information already disclosed publicly remains protected; citing Disciplinary Proceedings against Harman and ABA Formal Opinion 04-433, the committee explains that the protection is not forfeited because information is available from public sources or was previously filed, and that disclosure for a permitted purpose does not waive confidentiality. The duty reaches prospective clients (SCR 20:1.18(b)) and former clients (SCR 20:1.9(c)(2)), and continues after the client's death. The rule operates automatically: it applies even if the client never asked that the information be kept confidential and even if the lawyer believes disclosure would be "harmless," a change from the narrower DR 4-101. The committee points to SCR 20:1.6(c)(6), which permits limited disclosure of client identities to detect and resolve conflicts, and to the advertising rule's comment allowing the names of regularly represented clients to be used only with their consent, as confirming that client identity is protected. The committee closes by reminding lawyers to be mindful of this duty when using client information for marketing, articles, or presentations.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. As the rules stood at the time of the opinion, a Wisconsin lawyer could not disclose the identity of a current or former client for the lawyer's own purposes, such as marketing or references, without the client's informed consent, implied authorization, or a stated exception. The committee concludes that protection holds even where the identity is publicly available or the lawyer believes disclosure would be harmless, and that the same duty extends to prospective and former clients.

Common questions

Q: Is a client's identity confidential under the Wisconsin rules?

A: Yes. The committee concludes that client identity is information relating to the representation and is protected by SCR 20:1.6, so it may not be disclosed without informed consent, implied authorization, or a stated exception.

Q: Can a lawyer list a client's name in marketing materials?

A: Only with consent. The committee concludes that listing representative clients reveals protected identity, and the advertising rule's comment permits using the names of regularly represented clients only with their consent.

Q: Does it matter that the client's identity is already public?

A: No. The committee concludes, citing ABA Formal Op. 04-433 and Wisconsin case law, that information remains protected even if publicly filed or available from other sources, and that permitted disclosure does not waive confidentiality.

Q: Does the duty cover former and prospective clients?

A: Yes. The committee concludes that SCR 20:1.9(c)(2) protects former-client information to the same extent as current clients, and SCR 20:1.18(b) protects information learned from prospective clients.

Background and rules framework

The opinion interprets SCR 20:1.6 / Model Rule 1.6 (confidentiality, including the conflict-checking exception in 20:1.6(c)(6)), SCR 20:1.9(c)(2) / Model Rule 1.9 (former-client confidentiality), SCR 20:1.18(b) / Model Rule 1.18 (prospective-client confidentiality), and the advertising rule SCR 20:7.2 / Model Rule 7.2. The committee contrasts the broad SCR 20:1.6 standard with the narrower predecessor DR 4-101, and distinguishes the ethical duty from the evidentiary attorney-client privilege under Wis. Stat. 905.03 (which it leaves outside the opinion's scope).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.6, 20:1.6(c)(6) / Model Rule 1.6 (confidentiality; conflict-checking exception)
• Wis. SCR 20:1.9(c)(2) / Model Rule 1.9 (former-client confidentiality)
• Wis. SCR 20:1.18(b) / Model Rule 1.18 (prospective-client confidentiality)
• Wis. SCR 20:7.2 / Model Rule 7.2 (advertising; names of clients with consent)

Cases:

• Disciplinary Proceedings against Harman, 244 Wis. 2d 438, 628 N.W.2d 351 (2001), publicly filed information still protected from disclosure

Other opinions cited:

• ABA Formal Op. 04-433: Rule 1.6 protection not forfeited even when information is public or in a filed malpractice action
• Wisconsin Ethics Op. E-90-03: client identity and fee information protected by SCR 20:1.6(a)
• Wisconsin Ethics Op. E-93-5 (withdrawn by this opinion)

See also

• ABA Formal Op. 04-433: Reporting Misconduct of a Non-Practicing Lawyer
• WI Ethics Op. EF-23-01: Responding to Online Criticism
• DC Ethics Op. 281: Transmission of Confidential Information by Email

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-17-02%20Client%20Identity%20FINAL.pdf