Confidential information. We know it when we see it, but we don’t always know what to do with it, especially when it’s an integral part of our client’s case.
The Wisconsin Supreme Court itself is now dealing with this difficult matter through its extensive deliberations over a rule petition filed in November. Named Petition 14-04, the proposal would impose certain disclosure and redaction requirements on those who submit briefs containing Social Security numbers, bank-account numbers and other types of “protected information.”
Whatever the justices ultimately decide to do with the petition, no single rule can provide answers to questions that will inevitably still arise concerning how to handle information that could prove harmful if released to the general public, especially when neither its disclosure nor non-disclosure is mandated by statute or precedent. After all, few statutes fully encompass their subjects. Even the statute that would be created by Petition 14-04 – §801.19, Wis. Stats. – would deal with only a few types of “protected information.” In other words, a lawyer would still be left to his own counsel (no pun intended) to decide what can be safely, as well as ethically, disclosed.
What, then, should a lawyer do when faced with materially relevant, confidential information whose disclosure or nondisclosure is unregulated? Should a brief writer, for example, trudge ahead and put the information in a brief or, instead, go for a general description that does not disclose important details? What about moving to file the brief under seal?
And what are the ethical implications of each of these alternatives?
Not surprisingly, Wisconsin’s ethics rules don’t deal with this quandary directly.
Most of the state’s confidentiality rules concern information provided to a lawyer by a present, former or prospective client. See, for example, SCR 20:1.6 (“Confidentiality”), 20:1.9 (“Duties to former clients”), and 20:1.18 (“Duties to prospective client”). These rules provide guidance on when lawyers can ethically disclose various types of information, confidential or otherwise, without first obtaining consent.
Moreover, the sorts of information requiring protection extend beyond what might provided by, or even about, a lawyer’s client. It could be from or about an opposing party; the closest state rules come to dealing with this sort of information is SCR 20:3.4, entitled “Fairness to opposing party and counsel.” This prohibits a lawyer from making allusions at trial “to any matter that the lawyer does not reasonably believe is relevant…” The information might even be from a third party. SCR 20:4.1 requires truthfulness in a lawyer’s statements to third persons. But the issue here is one of disclosure, not accuracy.
The most relevant rule in this regard may be SCR 20:4.4, titled “Respect for rights of 3rd persons.” This rule prohibits lawyers from, among other things, “us(ing) means that have no substantial purpose other than to embarrass…. or burden a 3rd person….”
Lawyers then might turn to Wisconsin’s ethical rules concerning generalized behavioral standards. SCR 62.02(1), for example, requires lawyers, among other things, to “be guided by a fundamental sense of integrity and fair play;” to conduct court-related proceedings “with civility and respect for each of the participants;” to act so as to demonstrate “sensitivity to the necessity of preserving decorum and the integrity of the judicial process;” and to act in “good faith.” These dictates are consistent with SCR 40.06(1)’s requirement that the state bar admit only persons of “good moral character and fitness.”
These general rules, which concern mainly character and integrity, can serve as a backdrop to the ultimate issue—whether or not to disclose information which could result in harm, or even embarrassment, to another. In one sense, these rules answer their own question. If a theoretical person of integrity—a “good,” if imperfect, person—would think twice about disclosing information, then an upstanding lawyer, also as a person of integrity, should think twice too.
In the end, common sense may be the best guide, as it usually is. Err on the side of caution. If you need the information in your brief, move to seal either the particular reference to it or the brief as a whole. If the court grants your motion, those who need the information for litigation—the court, counsel and, with exceptions, the parties—will have it. If the court denies your motion, you will at least have the satisfaction of knowing you heeded your conscience.