Friday, March 18, 2016

State bar confuses silence with loyalty (again)

The state bar has run an on-line article about our rule petition to change SCR 1.9 so that Wisconsin attorneys can exercise our basic free speech rights with regard to public information about our former clients' cases.  You can find our petition and supporting documents here.  You can find the state bar's article here.  And reproduced below is my comment to the article:

This [state bar] article demonstrates that Rule 1.9 is so unclear, even the state bar ethics committee can't tell us what it means. In addition to the discussion of all of the possibilities of what it might mean, Tim Pierce even gets part of it wrong. For example, the article states (quoting Tim Pierce from the earlier oral arguments on the rule petition) that informed consent does not have to be in writing. Well, wait until you are in front of the OLR for a violation. Here's what the Wisconsin comment to Rule 1.9 reads: "The Wisconsin Supreme Court Rule differs from the Model Rule in requiring informed consent to be confirmed in a writing signed by the client." 

Now, although I do criticize Tim Pierce's position, his failure to see this is not a criticism of him, but of the bizarre, irrational, and overly complex rule. And this is just one example of how indecipherable this rule is -- a rule that perpetually bans lawyer free speech for all purposes, even with regard to public information. Here's another example: When am I deemed to be "revealing" information, and when am I "using" it? The Supreme Court Justices didn't know, I certainly haven't been able to figure it out, and the court decisions are all over the board -- but it matters, because each prong of the rule is different and has different exceptions. 

The most important point here is, as usual, the state bar and OLR are confusing "loyalty, confidentiality, and trust" with an attorney's discussion of widely available and public information, such as an appellate court decision. This information does not belong to the client and cannot be controlled by the client. By definition, it is in the public domain. Wisconsin appellate court cases even have public domain cites on them. Further, no client would want or expect their attorney to remain perpetually silent on such matters. (I give several examples of this in my Vermont L. Rev. article -- link provided in the article above.) 

Further, the rule is actually much broader than the above article suggests. For example, the law review article that I actually wanted to write, but didn't, involved an appellate case in which I was not even involved. Yet, I had been involved in a much earlier stage of the proceeding. However, because the published appellate court decision was "related to" my representation of the former client, I could not discuss it or criticize it, even though it was and is in the public domain.

Finally, the state bar is not part of the OLR, and it is discouraging that our state bar would take this stance against its own members with regard to our basic right of free speech. Our bar is currently mandatory, and can take our money each year and we have no say in the matter. But it may not always be this way. In Arizona, for example, their current bill to dismantle the mandatory bar and make it voluntary has passed the house and several senate subcommittees, and is set for a full vote in front off the senate. Their bar is fighting it vigorously because it knows that, if membership were not mandatory, few lawyers would join. Wisconsin's bar needs to realize that it is not the OLR, that it should be working for its membership and not against us, and that its ability to force us to fund it each year may not be as perpetual as the ban it wishes to impose on our free speech.

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