An Eau Claire criminal defense attorney who sent a letter to a judge containing information normally protected by attorney-client privilege did not violate any ethical rules, the Wisconsin Supreme Court ruled Tuesday.
Peter Thompson represented a man who was convicted at trial of first-degree sexual assault of a child under 13. The client is referred to in the court’s opinion as “Derek C.,” though one of his attorneys referred to him as Derek Copeland.
He was found guilty in 2007 and sentenced to 17 years. Following the trial, Copeland hired another attorney to pursue a postconviction ineffective assistance of counsel claim.
A few weeks before his trial, though, Copeland gave Thompson a note with a potential alibi defense. After vetting the information, though, Thompson did not use the defense during trial.
In 2008, Thompson sent the letter to Clark County Judge Jon Counsell because Copeland’s then-attorney – David Leeper of Madison – tried to get Counsell to rule on some of the motions before the ineffective assistance hearing – more commonly known as a Machner hearing. Counsell later denied Copeland’s ineffective assistance claim.
The Office of Lawyer Regulation filed its complaint in October 2011, alleging Thompson violated four rules that pertain to an attorney-client relationship.
In 2012, an OLR referee ruled that Thompson violated three of the rules, but the state Supreme Court reversed the referee’s decision and declined to impose any costs.
In its 23-page decision, the court explained that there was a lot of information in the letter – much of which would normally be covered by attorney-client privilege – but the information was provided to prove that Thompson acted properly while representing Copeland. According to the opinion, Thompson later said he suspected that his client was going to try to get Copeland’s brother – a witness to the sexual assault – to change his story, and that “much of his trial strategy was influenced by his efforts to manage this aspect of Derek C.’s defense.”
“Attorney Thompson found his client … uncooperative during their initial meetings,” according to the opinion. “Derek C. was not forthcoming when asked about possible defenses.”
The court also noted that Leeper’s tactics – which included a tense set of email exchanges and Leeper’s failure to send Thompson a courtesy copy of the ineffective assistance motion when it was filed – led to Thompson sending the letter to the judge.
“Part of appellate counsel’s strategy appears to have been to vilify Attorney Thompson for failing to pursue Derek C.’s alibi defense, then aggressively seeking to limit any opportunity for Attorney Thompson to explain the professional rationale for his decision,” according to the opinion.
The justices pointed out that an “angry rhetoric” permeated Thompson’s letter and his appellate brief for the disciplinary case. But, they wrote, “while unprofessional, it is not necessarily unethical,” according to the opinion.
Still, the court cautioned attorneys “that a former client’s pursuit of an ineffective assistance of counsel claim ‘does not give the lawyer carte blanche to disclose all information contained in a former client’s file.’”
OLR Director Keith Sellen declined to comment on the court’s decision.
Thompson — who has no prior disciplinary history — said Tuesday that this case has been “sitting on my brain since when I first took the case in ’06.” He said on no other occasion has he sent a letter like he did in this case, but he did so because he felt he wouldn’t be able to talk about the ineffective assistance claim if he didn’t do so.
Thompson said he is used to doing Machner hearings, but that Leeper’s handling of the situation made it virtually unworkable.
“It’s part of the territory,” Thompson said. “I show up, bring my file, I respond and go home. It’s not a personal thing, it’s just part of the territory. This was really bizarre.”
Leeper – a Madison-based attorney who withdrew from representing Copeland in April 2012 – said Tuesday that the problems in the case stemmed from a differing opinion on how trial lawyers should participate in Machner hearings. He said that in the more than 30 years he has worked as an appellate attorney, he has never had an attorney write a letter like Thompson did prior to a Machner hearing.
In a dissent authored by Justice Ann Walsh Bradley and joined by Chief Justice Shirley Abrahamson, the justices argued that Thompson did violate the rules, because the state Supreme Court’s rules do not provide an exception for the letter that Thompson sent.
“Unlike the majority, I think that the only reasonable interpretation … is that the disclosure of information must be in a court setting, i.e. a judicially supervised setting,” according to the dissent.
Dean Dietrich, an attorney with Ruder Ware LLSC in Wausau who frequently handles attorney-discipline cases, said that while this case was anomalous, similar situations often come up in divorce proceedings. But if a judge is present, an attorney would not be at as much of a risk to violate an attorney-client relationship.
“There probably is a likelihood,” Dietrich said, “that some of that stuff would not come out if it was done pursuant to court oversight in the form of the hearing.”
Copeland, 26, recently filed another appeal in his case. He is serving his time at the Oshkosh Correctional Institution.Follow @eheisigWLJ