CRITIC’S CORNER: All ‘Riled’ Up: SCOW flops on ethics rule 1.9

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In two previous columns I’ve discussed my rule 1.9 petition (written with my fellow attorney Terry Rose and supported by the attorneys Rob and Ellen Henak), in which I asked the Wisconsin Supreme Court to amend ethics rule 1.9.

In short, the Office of Lawyer Regulation and our State Bar believe that rule 1.9 prevents attorneys from discussing even public information about their closed cases. Why? Because, they contend, clients expect and are entitled to their former attorneys’ complete silence — even with regard to widely and publicly available information. This would mean, for example, that while the rest of the world can talk about a published appellate-court decision, the attorney who worked on the case cannot.

In my rule 1.9 petition and at the public hearing, I argued two points. They were that the State Bar and OLR’s interpretation (1) violates our right of free speech, and (2) is so absurd that it contradicts several other ethics rules, forcing lawyers to pick and choose which rule to violate and which to follow.

On May 12, the state Supreme Court voted 4-3 to preserve the status quo and deny my rule 1.9 petition; however Justices Shirley Abrahamson, Ann Walsh Bradley, and David Prosser dissented. As Abrahamson and Walsh Bradley wrote, “Testimony at the hearing and written communications to the court demonstrate that the petition addresses significant concerns about the existing version of SCR 20:1.9(c)” which, she wrote, “obviously needs work.”

Then, on July 15, the Supreme Court published a lengthy and convoluted opinion concerning attorney ethics in In Re Riley, 2016 WI 70. The OLR had been pursuing Riley for several years. Then, nearly a decade after his alleged misdeed, the court came to the conclusion that Riley had violated an ethics rule.

What did Riley supposedly do? In 2006 he called his client to the stand, asked him an open-ended question and let him answer it. Riley and his client lost their case. Then, in 2008, Riley learned that his former client’s 2006 testimony was false, and was arguably material to the case. (How it could have been “material” even after the client had lost the case is a question for another day.)

So what was Riley’s supposed ethics violation? The OLR and Supreme Court believed that Riley should have gone to the OLR, the judge, or the court to report his former client’s false testimony, as required by the ethics rules.

But what about ethics rule 1.9, which the OLR and State Bar defended so vigorously when opposing my petition? Remember, the OLR and State Bar believe that the client expects and has the right to the former attorney’s complete silence, even with regard to widely and publicly available information. How, then, could Riley have been required to breach the attorney-client relationship and disclose truly confidential, non-public information that could directly and severely harm his former client?

The short answer: The OLR and the State Bar will join forces to defend rule 1.9 in order to suppress attorney speech about public information, but the OLR will pretend that rule 1.9 does not exist when the rule fails to suit its purposes. This is the absurdity of rule 1.9. As I have written and argued, it leaves lawyers guessing about which rule they can safely violate.

Prosser appreciated the irreconcilable conflict that results from the different rules. In his dissent in In Re Riley, he stated “the lead opinion is a little light in discussion about the serious tension between [1] privileged information, confidentiality, and loyalty to a client, on the one hand, and [2] an attorney’s obligation to the court, on the other” (¶116). One problem with this “tension,” Prosser noted, is that had Riley tattled on his former client, not only could Riley have been fired, but the former client could have sued him for violating the rules of confidentiality and attorney-client privilege (¶142).

There are several lessons in this for Wisconsin attorneys. First, rule 1.9 often conflicts with other ethics rules, creating inescapable traps for lawyers with even the best of intentions. Second, by opposing my petition to modify rule 1.9, the State Bar has demonstrated that it is not working for its attorney-membership. And third, as one Wisconsin prosecutor lamented, the OLR is “apparently more concerned with how ‘they look’ in the zealous pursuit of an attorney ‘pelt,’ rather than what result ‘should’ be reached” (2014 WI 31, ¶ 39).

As for Supreme Court? Well, ethics rule 1.9 is, after all, a Supreme Court Rule. Abrahamson and Walsh Bradley said it best in their dissent from the majority’s denial of my rule 1.9 petition. They acknowledged the rule causes serious problems for attorneys. They then rhetorically asked, “If guidance is needed, why isn’t the court providing it?”

For more on how rule 1.9 conflicts with other ethics rules, see Michael Cicchini’s article “On the Absurdity of Model Rule 1.9,” available on the articles page of www.CicchiniLaw.com.

Correction: This article has been corrected to state that justices Shirley Abrahamson and Ann Walsh Bradley’s dissent was to the majority’s denial of the rule 1.9 petition, not to the petition itself.