Petition to modify Wisconsin SCR 20:1.9

Madison, WI

Most attorneys confuse ethics rule 1.9 with the evidence rule of attorney-client privilege. (Chalk this up to another colossal failure of legal education.) But ethics rule 1.9 is much broader, and essentially prevents an attorney from discussing, writing about, or otherwise disclosing even public information about his or her closed cases. Among other problems, this rule is a clear violation of an attorney’s free speech rights. In fact, the state of Virginia has already said as much, as its supreme court held that an ethics rule may not prevent an attorney from discussing the public aspects of his or her closed cases. And other states, such as Alaska, permit attorneys to discuss the public aspects of their closed cases for CLE purposes. So fellow attorney Terry Rose and I have filed a petition with the Wisconsin Supreme Court to modify ethics rule 1.9. The very modest modifications would permit an attorney to discuss, write about, or otherwise disclose public information about his or her closed cases. You can find our two-page petition at this link. You can find our fifteen-page supporting memorandum that blasts rule 1.9 at this link. Wisconsin attorneys who want to support our petition can do so by following the instructions at this link. Our petition and memorandum are based on my forthcoming article, On the Absurdity of Model Rule 1.9, which will be published in the Vermont Law Review in January 2016.