SCR 20:1.6. Confidentiality

Confidentiality

(a) A lawyer shall not reveal information relating to the

representation of a client unless the client gives informed consent, except

for disclosures that are impliedly authorized in order to carry out the

representation, and except as stated in pars. (b) and (c).

(b) A lawyer shall reveal information relating to the representation

of a client 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 death or substantial bodily

harm or in substantial injury to the financial interest or property of

another.

(c) A lawyer may reveal information relating to the representation

of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably likely death or substantial bodily harm;

(2) to prevent, mitigate or rectify substantial injury to the financial

interests or property of another that is reasonably certain to result or has

resulted from the client's commission of a crime or fraud in furtherance

of which the client has used the lawyer's services;

(3) to secure legal advice about the lawyer's conduct under these

rules;

(4) to establish a claim or defense on behalf of the lawyer in a

controversy between the lawyer and the client, to establish a defense to a

criminal charge or civil claim against the lawyer based upon conduct in

which the client was involved, or to respond to allegations in any

proceeding concerning the lawyer's representation of the client;

(5) to comply with other law or a court order; or

(6) to detect and resolve conflicts of interest, but only if the

revealed information would not compromise the attorney-client privilege

or otherwise prejudice the client.

st the lawyer based upon conduct in

which the client was involved, or to respond to allegations in any

proceeding concerning the lawyer's representation of the client;

(5) to comply with other law or a court order; or

(6) to detect and resolve conflicts of interest, but only if the

revealed information would not compromise the attorney-client privilege

or otherwise prejudice the client.

(d) A lawyer shall make reasonable efforts to prevent the

inadvertent or unauthorized disclosure of, or unauthorized access to,

information relating to the representation of a client.

WISCONSIN COMMITTEE COMMENT

The rule retains in paragraph (b) the mandatory disclosure requirements that have been

a part of the Wisconsin Supreme Court Rules since their initial adoption. Paragraph

(c) differs from its counterpart, Model Rule 1.6(b), as necessary to take account of the

mandatory disclosure requirements in Wisconsin. The language in paragraph (c)(1)

was changed from "reasonably certain" to "reasonably likely" to comport with sub.

(b). Due to substantive and numbering differences, special care should be taken in

consulting the ABA Comment.

WISCONSIN COMMITTEE COMMENT

Paragraph (c)(6) differs from its counterpart, Model Rule 1.6(b)(7). Unlike its

counterpart, paragraph (c)(6) is not limited to detecting and resolving conflicts arising

from the lawyer's change in employment or from changes in the composition or

ownership of a firm. Paragraph (c)(6), like its counterpart, recognizes that in certain

circumstances, lawyers in different firms may need to disclose limited information to

each other to detect and resolve conflicts of interest. ABA Comment [13] provides

examples of those circumstances. Paragraph (c)(6), unlike its counterpart, also

recognizes that in certain circumstances, lawyers may need to disclose limited

information to clients and former clients to detect and resolve conflict of interests

awyers in different firms may need to disclose limited information to

each other to detect and resolve conflicts of interest. ABA Comment [13] provides

examples of those circumstances. Paragraph (c)(6), unlike its counterpart, also

recognizes that in certain circumstances, lawyers may need to disclose limited

information to clients and former clients to detect and resolve conflict of interests.

Under those circumstances, any such disclosure should ordinarily include no more

than the identity of the clients or former clients. The disclosure of any information, to

either lawyers in different firms or to other clients or former clients, is prohibited if it

would compromise the attorney-client privilege or otherwise prejudice the client.

ABA Comment [13] provides examples of when the disclosure of any information

would prejudice the client. Lawyers should err on the side of protecting

confidentiality.

ABA COMMENT

[1] This Rule governs the disclosure by a lawyer of information relating to the

representation of a client during the lawyer's representation of the client. See Rule

1.18 for the lawyer's duties with respect to information provided to the lawyer by a

prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information

relating to the lawyer's prior representation of a former client and Rules 1.8(b) and

1.9(c)(1) for the lawyer's duties with respect to the use of such information to the

disadvantage of clients and former clients.

[2] A fundamental principle in the client-lawyer relationship is that, in the absence of

the client's informed consent, the lawyer must not reveal information relating to the

representation. See Rule 1.0(e) for the definition of informed consent. This contributes

to the trust that is the hallmark of the client-lawyer relationship. The client is thereby

encouraged to seek legal assistance and to communicate fully and frankly with the

lawyer even as to embarrassing or legally damaging subject matter

rmed consent, the lawyer must not reveal information relating to the

representation. See Rule 1.0(e) for the definition of informed consent. This contributes

to the trust that is the hallmark of the client-lawyer relationship. The client is thereby

encouraged to seek legal assistance and to communicate fully and frankly with the

lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs

this information to represent the client effectively and, if necessary, to advise the client

to refrain from wrongful conduct. Almost without exception, clients come to lawyers

in order to determine their rights and what is, in the complex of laws and regulations,

deemed to be legal and correct. Based upon experience, lawyers know that almost all

clients follow the advice given, and the law is upheld.

[3] The principle of client-lawyer confidentiality is given effect by related bodies of

law: the attorney-client privilege, the work product doctrine and the rule of

confidentiality established in professional ethics. The attorney-client privilege and

work-product doctrine apply in judicial and other proceedings in which a lawyer may

be called as a witness or otherwise required to produce evidence concerning a client.

The rule of client-lawyer confidentiality applies in situations other than those where

evidence is sought from the lawyer through compulsion of law. The confidentiality

rule, for example, applies not only to matters communicated in confidence by the

client but also to all information relating to the representation, whatever its source. A

lawyer may not disclose such information except as authorized or required by the

Rules of Professional Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing information relating to the

representation of a client

ies not only to matters communicated in confidence by the

client but also to all information relating to the representation, whatever its source. A

lawyer may not disclose such information except as authorized or required by the

Rules of Professional Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing information relating to the

representation of a client. This prohibition also applies to disclosures by a lawyer that

do not in themselves reveal protected information but could reasonably lead to the

discovery of such information by a third person. A lawyer's use of a hypothetical to

discuss issues relating to the representation is permissible so long as there is no

reasonable likelihood that the listener will be able to ascertain the identity of the client

or the situation involved.

Authorized Disclosure

[5] Except to the extent that the client's instructions or special circumstances limit that

authority, a lawyer is impliedly authorized to make disclosures about a client when

appropriate in carrying out the representation. In some situations, for example, a

lawyer may be impliedly authorized to admit a fact that cannot properly be disputed

or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers

in a firm may, in the course of the firm's practice, disclose to each other information

relating to a client of the firm, unless the client has instructed that particular

information be confined to specified lawyers.

Disclosure Adverse to Client

[6] Although the public interest is usually best served by a strict rule requiring lawyers

to preserve the confidentiality of information relating to the representation of their

clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1)

recognizes the overriding value of life and physical integrity and permits disclosure

reasonably necessary to prevent reasonably certain death or substantial bodily harm

usually best served by a strict rule requiring lawyers

to preserve the confidentiality of information relating to the representation of their

clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1)

recognizes the overriding value of life and physical integrity and permits disclosure

reasonably necessary to prevent reasonably certain death or substantial bodily harm.

Such harm is reasonably certain to occur if it will be suffered imminently or if there

is a present and substantial threat that a person will suffer such harm at a later date if

the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who

knows that a client has accidentally discharged toxic waste into a town's water supply

may reveal this information to the authorities if there is a present and substantial risk

that a person who drinks the water will contract a life-threatening or debilitating

disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the

number of victims.

[7] Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits

the lawyer to reveal information to the extent necessary to enable affected persons or

appropriate authorities to prevent the client from committing a crime or fraud, as

defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the

financial or property interests of another and in furtherance of which the client has

used or is using the lawyer's services. Such a serious abuse of the client-lawyer

relationship by the client forfeits the protection of this Rule. The client can, of course,

prevent such disclosure by refraining from the wrongful conduct. Although paragraph

ably certain to result in substantial injury to the

financial or property interests of another and in furtherance of which the client has

used or is using the lawyer's services. Such a serious abuse of the client-lawyer

relationship by the client forfeits the protection of this Rule. The client can, of course,

prevent such disclosure by refraining from the wrongful conduct. Although paragraph

(b)(2) does not require the lawyer to reveal the client's misconduct, the lawyer may

not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent.

See Rule 1.2(d). See also Rule 1.16 with respect to the lawyer's obligation or right to

withdraw from the representation of the client in such circumstances, and Rule

1.13(c), which permits the lawyer, where the client is an organization, to reveal

information relating to the representation in limited circumstances.

[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of the

client's crime or fraud until after it has been consummated. Although the client no

longer has the option of preventing disclosure by refraining from the wrongful

conduct, there will be situations in which the loss suffered by the affected person can

be prevented, rectified or mitigated. In such situations, the lawyer may disclose

information relating to the representation to the extent necessary to enable the affected

persons to prevent or mitigate reasonably certain losses or to attempt to recoup their

losses. Paragraph (b)(3) does not apply when a person who has committed a crime or

fraud thereafter employs a lawyer for representation concerning that offense.

or mitigated. In such situations, the lawyer may disclose

information relating to the representation to the extent necessary to enable the affected

persons to prevent or mitigate reasonably certain losses or to attempt to recoup their

losses. Paragraph (b)(3) does not apply when a person who has committed a crime or

fraud thereafter employs a lawyer for representation concerning that offense.

[9] A lawyer's confidentiality obligations do not preclude a lawyer from securing

confidential legal advice about the lawyer's personal responsibility to comply with

these Rules. In most situations, disclosing information to secure such advice will be

impliedly authorized for the lawyer to carry out the representation. Even when the

disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure

because of the importance of a lawyer's compliance with the Rules of Professional

Conduct.

[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a

client's conduct or other misconduct of the lawyer involving representation of the

client, the lawyer may respond to the extent the lawyer reasonably believes necessary

to establish a defense. The same is true with respect to a claim involving the conduct

or representation of a former client. Such a charge can arise in a civil, criminal,

disciplinary or other proceeding and can be based on a wrong allegedly committed by

the lawyer against the client or on a wrong alleged by a third person, for example, a

person claiming to have been defrauded by the lawyer and client acting together. The

lawyer's right to respond arises when an assertion of such complicity has been made.

Paragraph (b)(5) does not require the lawyer to await the commencement of an action

or proceeding that charges such complicity, so that the defense may be established by

responding directly to a third party who has made such an assertion. The right to

defend also applies, of course, where a proceeding has been commenced

ight to respond arises when an assertion of such complicity has been made.

Paragraph (b)(5) does not require the lawyer to await the commencement of an action

or proceeding that charges such complicity, so that the defense may be established by

responding directly to a third party who has made such an assertion. The right to

defend also applies, of course, where a proceeding has been commenced.

[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services

rendered in an action to collect it. This aspect of the Rule expresses the principle that

the beneficiary of a fiduciary relationship may not exploit it to the detriment of the

fiduciary.

[12] Other law may require that a lawyer disclose information about a client. Whether

such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules.

When disclosure of information relating to the representation appears to be required

by other law, the lawyer must discuss the matter with the client to the extent required

by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure,

paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to

comply with the law.

[13] Paragraph (b)(7) recognizes that lawyers in different firms may need to disclose

limited information to each other to detect and resolve conflicts of interest, such as

when a lawyer is considering an association with another firm, two or more firms are

considering a merger, or a lawyer is considering the purchase of a law practice. See

Rule 1.17, Comment [7]. Under these circumstances, lawyers and law firms are

permitted to disclose limited information, but only once substantive discussions

regarding the new relationship have occurred. Any such disclosure should ordinarily

include no more than the identity of the persons and entities involved in a matter, a

brief summary of the general issues involved, and information about whether the

matter has terminated

circumstances, lawyers and law firms are

permitted to disclose limited information, but only once substantive discussions

regarding the new relationship have occurred. Any such disclosure should ordinarily

include no more than the identity of the persons and entities involved in a matter, a

brief summary of the general issues involved, and information about whether the

matter has terminated. Even this limited information, however, should be disclosed

only to the extent reasonably necessary to detect and resolve conflicts of interest that

might arise from the possible new relationship. Moreover, the disclosure of any

information is prohibited if it would compromise the attorney-client privilege or

otherwise prejudice the client (e.g., the fact that a corporate client is seeking advice

on a corporate takeover that has not been publicly announced; that a person has

consulted a lawyer about the possibility of divorce before the person's intentions are

known to the person's spouse; or that a person has consulted a lawyer about a criminal

investigation that has not led to a public charge). Under those circumstances,

paragraph (a) prohibits disclosure unless the client or former client gives informed

consent. A lawyer's fiduciary duty to the lawyer's firm may also govern a lawyer's

conduct when exploring an association with another firm and is beyond the scope of

these Rules.

[14] Any information disclosed pursuant to paragraph (b)(7) may be used or further

disclosed only to the extent necessary to detect and resolve conflicts of interest.

Paragraph (b)(7) does not restrict the use of information acquired by means

independent of any disclosure pursuant to paragraph (b)(7)

duct when exploring an association with another firm and is beyond the scope of

these Rules.

[14] Any information disclosed pursuant to paragraph (b)(7) may be used or further

disclosed only to the extent necessary to detect and resolve conflicts of interest.

Paragraph (b)(7) does not restrict the use of information acquired by means

independent of any disclosure pursuant to paragraph (b)(7). Paragraph (b)(7) also

does not affect the disclosure of information within a law firm when the disclosure is

otherwise authorized, see Comment [5], such as when a lawyer in a firm discloses

information to another lawyer in the same firm to detect and resolve conflicts of

interest that could arise in connection with undertaking a new representation.

[15] A lawyer may be ordered to reveal information relating to the representation of a

client by a court or by another tribunal or governmental entity claiming authority

pursuant to other law to compel the disclosure. Absent informed consent of the client

to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims

that the order is not authorized by other law or that the information sought is protected

against disclosure by the attorney-client privilege or other applicable law. In the event

of an adverse ruling, the lawyer must consult with the client about the possibility of

appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph

alf of the client all nonfrivolous claims

that the order is not authorized by other law or that the information sought is protected

against disclosure by the attorney-client privilege or other applicable law. In the event

of an adverse ruling, the lawyer must consult with the client about the possibility of

appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph

(b)(6) permits the lawyer to comply with the court's order.

[16] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes

the disclosure is necessary to accomplish one of the purposes specified. Where

practicable, the lawyer should first seek to persuade the client to take suitable action

to obviate the need for disclosure. In any case, a disclosure adverse to the client's

interest should be no greater than the lawyer reasonably believes necessary to

accomplish the purpose. If the disclosure will be made in connection with a judicial

proceeding, the disclosure should be made in a manner that limits access to the

information to the tribunal or other persons having a need to know it and appropriate

protective orders or other arrangements should be sought by the lawyer to the fullest

extent practicable.

[17] Paragraph (b) permits but does not require the disclosure of information relating

to a client's representation to accomplish the purposes specified in paragraphs (b)(1)

through (b)(6). In exercising the discretion conferred by this Rule, the lawyer may

consider such factors as the nature of the lawyer's relationship with the client and with

those who might be injured by the client, the lawyer's own involvement in the

transaction and factors that may extenuate the conduct in question. A lawyer's decision

not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure

may be required, however, by other Rules. Some Rules require disclosure only if such

disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1, and 8.3

by the client, the lawyer's own involvement in the

transaction and factors that may extenuate the conduct in question. A lawyer's decision

not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure

may be required, however, by other Rules. Some Rules require disclosure only if such

disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1, and 8.3.

Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of

whether such disclosure is permitted by this Rule. See Rule 3.3(c).

Acting Competently to Preserve Confidentiality

[18] Paragraph (c) requires a lawyer to act competently to safeguard information

relating to the representation of a client against unauthorized access by third parties

and against inadvertent or unauthorized disclosure by the lawyer or other persons who

are participating in the representation of the client or who are subject to the lawyer's

supervision. See Rules 1.1, 5.1, and 5.3. The unauthorized access to, or the inadvertent

or unauthorized disclosure of, information relating to the representation of a client

does not constitute a violation of paragraph (c) if the lawyer has made reasonable

efforts to prevent the access or disclosure. Factors to be considered in determining the

reasonableness of the lawyer's efforts include, but are not limited to, the sensitivity of

the information, the likelihood of disclosure if additional safeguards are not employed,

the cost of employing additional safeguards, the difficulty of implementing the

safeguards, and the extent to which the safeguards adversely affect the lawyer's ability

to represent clients (e.g., by making a device or important piece of software

excessively difficult to use). A client may require the lawyer to implement special

security measures not required by this Rule or may give informed consent to forgo

security measures that would otherwise be required by this Rule

safeguards, and the extent to which the safeguards adversely affect the lawyer's ability

to represent clients (e.g., by making a device or important piece of software

excessively difficult to use). A client may require the lawyer to implement special

security measures not required by this Rule or may give informed consent to forgo

security measures that would otherwise be required by this Rule. Whether a lawyer

may be required to take additional steps to safeguard a client's information in order to

comply with other law, such as state and federal laws that govern data privacy or that

impose notification requirements upon the loss of, or unauthorized access to,

electronic information, is beyond the scope of these Rules. For a lawyer's duties when

sharing information with nonlawyers outside the lawyer's own firm, see Rule 5.3,

Comments [3]-[4].

[19] When transmitting a communication that includes information relating to the

representation of a client, the lawyer must take reasonable precautions to prevent the

information from coming into the hands of unintended recipients. This duty, however,

does not require that the lawyer use special security measures if the method of

communication affords a reasonable expectation of privacy. Special circumstances,

however, may warrant special precautions. Factors to be considered in determining

the reasonableness of the lawyer's expectation of confidentiality include the sensitivity

of the information and the extent to which the privacy of the communication is

protected by law or by a confidentiality agreement. A client may require the lawyer to

implement special security measures not required by this Rule or may give informed

consent to the use of a means of communication that would otherwise be prohibited

by this Rule. Whether a lawyer may be required to take additional steps in order to

comply with other law, such as state and federal laws that govern data privacy, is

beyond the scope of these Rules.

Former Client

the lawyer to

implement special security measures not required by this Rule or may give informed

consent to the use of a means of communication that would otherwise be prohibited

by this Rule. Whether a lawyer may be required to take additional steps in order to

comply with other law, such as state and federal laws that govern data privacy, is

beyond the scope of these Rules.

Former Client

[20] The duty of confidentiality continues after the client-lawyer relationship has

terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using

such information to the disadvantage of the former client.