The next president of the Wisconsin State Bar, Paul Swanson, has promised to serve the organization’s members in a variety of ways. I take him at his word, and am writing this open letter to suggest a starting point.
My fellow attorney Terry Rose and I now have a rules petition pending at the Supreme Court of Wisconsin. Our petition was supported by Robert Henak, another attorney, and, following a public hearing, we came together to make this request of the court: Amend SCR 1.9 to clarify for the Office of Lawyer Regulation that it cannot discipline lawyers for discussing or writing about public information relating to their closed cases.
Currently, the OLR takes the position that if an attorney were to discuss or write about a former client’s appellate-court decision (even for purposes of lawyer CLE presentations or scholarly articles), it would constitute a “use” or “revelation” of information — the rule is so vague that the OLR cannot say which — in violation of the rule.
Because the OLR’s interpretation both conflicts with the rule’s language and serves no legitimate purpose, we expected some support for our petition from our State Bar. What we didn’t expect is that both the State Bar’s ethics counsel and the chairman of the bar’s ethics committee would join the OLR in its absurd view that publicly available information, including a published appellate court decision, belongs to the client and an attorney may not discuss or write about it without the obtaining the “informed consent” of the former client.
The State Bar’s position is riddled with errors, most of which we’ve exposed in our petition and memorandum. Most notably, the bar’s interpretation would serve as a perpetual ban on an attorney’s speech with regard to widely and publicly available information while serving no legitimate purpose. This would obviously violate the First Amendment.
But more specifically, our State Bar is making three fundamental errors in its thinking, all of which operate to its members’ detriment. First, it assumes that publicly filed and publicly available information, including an appellate-court decision, is owned by the client. This assumption is false. These opinions are widely and publicly available to everyone, and even include “public domain” citations. They are in the public domain by definition. Anyone can thus use, discuss or write about them, including the attorney who worked on the client’s case.
Second, the bar is out of touch with reality. It assumes that clients want to silence their former attorneys with regard to the public aspects of their closed cases. The rest of the world, meanwhile, is free to speak about those closed cases.
The bar continually confuses (1) an attorney’s duty of loyalty with (2) the attorney’s perpetual silence on matters of public record. These two things are quite distinct, and the bar’s continued confusion not only serves to suppress its members’ speech, but does nothing whatsoever to “protect” former clients. In fact, the rule already permits attorneys to use generally known information without consent even when it harms the former client — something the State Bar chooses to ignore.
Third, and most disappointing, the State Bar is not only going out of its way to be anti-lawyer, but its obsession in doing so has blinded it to the absurd results of its interpretation. For example, if the bar’s interpretation of SCR 1.9 were correct, and an attorney may not discuss or write about a former client’s appellate-court decision simply because the attorney handled the appeal (or even the earlier trial), then the Wisconsin State Public Defender’s Office would be committing ethics violations nearly every day.
More specifically, the SPD publishes a blog called On Point, which analyzes appellate-court decisions concerning criminal law. It summarizes and discusses these cases, and provides links to the cases and other public documents, including attorneys’ briefs. On Point is an incredibly valuable resource for many Wisconsin lawyers.
Yet, according to the State Bar’s interpretation of SCR 1.9, the public defender’s office is violating the ethics rule. Why? Because the SPD has represented many (if not most) of the defendants in these cases. This just proves what the State Bar should have already realized: that the information the SPD is writing about in its On Point blog is widely available and is part of the public domain. Further, everyone, including the SPD, should be able to discuss it or write about it without violating the ethics rule.
The next president of the State Bar should change the culture within the bar. The bar is not the OLR. The bar should be there to support us — particularly with regard to our fundamental right to talk about the public aspects of our closed cases. If the new president-elect is really intent on making members his top priority, then changing the bar’s culture should be item No. 1 on his agenda.