CRITIC’S CORNER: A call to arms (so to speak)

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Free speech is under attack — including at our nation’s colleges.

The University of Wisconsin chancellor even jumped on this anti-speech bandwagon when she recently wrote: “No one is entitled to express (beliefs) in ways that diminish others, or that devalues the presence of anyone that is part of our Badger community.”

Such a claim, if true, would obviously destroy the First Amendment. Fortunately, there are organizations such as the Foundation for Individual Rights in Education to defend free-speech rights on campus. Unfortunately, the legal profession, at least when it comes to suppressing its members’ speech, may be far worse than even our hypersensitive colleges and universities.

Wisconsin attorneys are subject to rules — namely, ethics rules 1.6 and 1.9 — that prevent us from discussing our cases. More precisely, the basic ethics rule, which should not be confused with the evidence rule of attorney-client privilege, actually states that a lawyer may not “reveal information relating to the representation …”

Many lawyers think they are thus free to discuss case outcomes and other information as long as it has been made public in one way or another. After all, isn’t public information, by definition, something that has already been revealed?

But as Attorney Edward Feldman warns, “You might think that the word ‘reveal’ fences in the rule, but the fence, if it exists at all, is rickety.”

Feldman’s metaphor of a rickety fence derives directly from the fact that bar associations and lawyer-disciplinary bodies define the word “reveal” as meaning “to communicate.” Therefore, under the ethics rule, an attorney can reveal information and violate the rule merely by talking about a former client’s case — even when the information being discussed is already public and widely available on the Internet.

The goal behind the rule of confidentiality is as old as the legal profession itself: to encourage laymen to seek legal assistance and fully communicate with their lawyers. Therefore, the old Model Code — the predecessor to today’s ethics rules — prevented an attorney from revealing a client’s “confidences and secrets.” But then, without justification, the rule-makers expanded the class of protected information from “confidences and secrets” to “all information relating to the representation, whatever its source.”

To test the connection between the policy behind the rule and the rule itself, ask this one simple question: Why would a potential client hesitate to hire an attorney or tell the attorney secret or privileged information simply because, after the representation had ended, the attorney would be free to talk about public aspects of the case?

The Supreme Court of Virginia has already answered this question. In Hunter v. Virginia State Bar, the bar argued that if its members were allowed to discuss public information about their closed cases, “it could inhibit clients from freely communicating with their attorneys” or could “undermine public confidence in the legal profession.” The court, however, found these claims “unsupported by the evidence.” Further, “To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

The court went on to declare that its state’s ethics rule violated attorneys’ First Amendment rights: “(We) are called upon to answer whether the state may prohibit an attorney from discussing (public) information about a client or former client … without express consent from that client. We agree with (the attorney) that it may not.”

The Supreme Court of Virginia notwithstanding, the right of free speech is often misunderstood or undervalued in today’s overly sensitive, anti-speech world. And when it comes to the rights of attorneys, the situation is only made worse by the great deal of anti-lawyer sentiment that is found among the general public, state bar associations and even legal educators (who are becoming increasingly detached from the legal profession).

Despite all of this, we lawyers should not allow ourselves to be relegated to second-class status when it comes to our First Amendment rights. Therefore, my fellow attorney Terry Rose and I have filed Petition 15-04 to modify Wisconsin’s ethics rule 1.9 — the rule that prohibits attorneys from discussing public information about their closed cases. Our petition and memorandum are based on my recent Vermont Law Review article, On the Absurdity of Model Rule 1.9.

Our simple proposal would amend ethics rule 1.9 to permit Wisconsin attorneys to discuss, write about, or otherwise “reveal” public information about their closed cases. We urge Wisconsin attorneys to support our proposal, which is currently scheduled for a public hearing at 9:30 a.m. Feb. 23 at the state Capitol. If adopted, it would help restore our First Amendment rights and place us on par with our fellow citizens.