Office of Lawyer Regulation v. Peter J. Thompson , 353 Wis. 2d 556 ( 2014 )

2014 WI 25
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2458-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Peter J. Thompson, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Peter J. Thompson,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST THOMPSON
OPINION FILED: May 20, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs by Peter J.
Thompson, pro se.
For the Office of Lawyer Regulation, there was a brief by
Robert G. Krohn and Roethe Pope Roethe LLP, Edgerton.
2014 WI 25
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2458-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Peter J. Thompson, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
MAY 20, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Peter J. Thompson,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Complaint dismissed.
¶1 PER CURIAM. Attorney Peter J. Thompson, pro se,
appeals Referee James Curtis's report concluding that Attorney
Thompson engaged in professional misconduct warranting a public
reprimand. Under the facts presented, we conclude Attorney
Thompson did not violate the rules of professional conduct as
alleged in the complaint. However, we remind lawyers to proceed
with caution when considering disclosure of confidential client
information in response to a claim of ineffective assistance of
counsel.
No. 2011AP2458-D
¶2 Attorney Thompson was licensed to practice law in
Wisconsin in 1974. When this case commenced, he had practiced
law for 34 years and had never been the subject of a
disciplinary action. This misconduct proceeding stems from a
letter that Attorney Thompson sent to the circuit court judge
presiding over a postconviction proceeding in which Attorney
Thompson's former client, Derek C., alleged that Attorney
Thompson rendered him ineffective assistance of counsel.
Accordingly, Derek C.'s underlying criminal proceeding is
relevant to the pending allegations of misconduct.
¶3 In October 2006 the State Public Defender's Office
(SPD) appointed Attorney Thompson to represent Derek C., who was
charged with one felony count of first-degree sexual assault of
a child under the age of 13. The criminal complaint alleged
that Derek C. had sexually assaulted his five-year-old nephew
while babysitting the boy during a specific school snow day in
December 2005.
¶4 Attorney Thompson and Derek C. appeared for a court
status conference on March 21, 2007, and requested a jury trial.
Trial was scheduled to commence July 10, 2007. In early June
2007 Attorney Thompson and Derek C. appeared for a final
pretrial conference. At the conference, Derek C. provided
Attorney Thompson with a handwritten note describing a potential
alibi defense and naming several possible witnesses. Attorney
Thompson received the note after the deadline for filing a
notice of alibi defense.
2
No. 2011AP2458-D
¶5 On June 20, 2007, Attorney Thompson moved the court to
shorten the time for filing an alibi and filed the alibi
defense. In July 2007 Derek C.'s case went to trial. As will
be discussed, Attorney Thompson opted not to use the alibi
defense at trial. Derek C. was convicted.
¶6 In September 2007, prior to sentencing, Attorney
Thompson withdrew as counsel. On or about September 24, 2007,
Attorney Richard Schaumberg was appointed as successor counsel.
Attorney Thompson gave Attorney Schaumberg relevant portions of
Derek C.'s file.
¶7 On January 30, 2008, Derek C. and Attorney Schaumberg
appeared for the sentencing hearing at which Derek C. was
sentenced to 10 years of incarceration and seven years of
extended supervision. Attorney Schaumberg filed a timely notice
of intent to pursue postconviction relief.
¶8 In March 2008 the SPD appointed Attorney David Leeper
to represent Derek C. as appellate/postconviction counsel. On
July 7, 2008, Attorney Leeper filed a motion for a new trial on
behalf of Derek C., alleging that Attorney Thompson rendered
ineffective assistance of counsel.
¶9 The Machner hearing was scheduled to commence
October 14, 2008.1 On September 16, 2008, Attorney Leeper filed
several motions asking the trial court to make rulings in
advance of the Machner hearing. He asked the court to deem
1
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
3
No. 2011AP2458-D
Attorney Thompson an adverse witness, contending that Attorney
Thompson had been unresponsive and uncooperative during
postconviction proceedings, and asked the court to remove the
district attorney from the case. He asked the circuit court to
"summarily" decide the motions before the Machner hearing.
¶10 Attorney Thompson was concerned that the circuit court
would rule on Attorney Leeper's motions before the Machner
hearing and limit his opportunity to testify. On September 24,
2008, Attorney Thompson wrote to the Honorable Jon Counsell, the
judge presiding over Derek C.'s postconviction proceeding.
Attorney Thompson requested the court's permission to address
"certain motions and assertions that Attorney Leeper has been
making" and asked the court to permit Attorney Thompson "a
chance to respond to these and other issues by the close of
business on Monday, September 29th." The record reflects that
Attorney Thompson received a communication from court staff,
indicating that Attorney Thompson could respond.
¶11 Attorney Thompson then sent the September 29, 2008
letter that forms the basis of the OLR's complaint.
¶12 The parties dispute whether ensuing events are
relevant. We summarize them briefly. The Machner hearing
commenced on October 14, 2008. Before Attorney Thompson
arrived, Attorney Leeper sought and received a sequestration
order. Attorney Thompson was not present at the time and was
not specifically subject to the sequestration order. The
Machner hearing did not finish that day and Attorney Thompson
was not called to testify.
4
No. 2011AP2458-D
¶13 On October 21, 2008, the circuit court issued an order
rejecting Attorney Leeper's request that the court limit
discussions between the district attorney and Attorney Thompson.
Attorney Leeper sought leave to appeal this nonfinal order and
the court of appeals accepted review. The Machner hearing was
continued pending appeal.
¶14 In February 2011 the court of appeals ruled that a
circuit court has authority to issue a sequestration order
prohibiting the prosecutor from discussing witness testimony
with defense counsel. The court directed the circuit court, on
remand, to clarify whether it intended its sequestration order
to include Attorney Thompson.
¶15 On remand, Judge Counsell ruled that Attorney Thompson
was not subject to the sequestration order, noting that trial
counsel in a Machner hearing should have the opportunity to
prepare for the hearing.
¶16 In April 2012 Attorney Leeper withdrew as counsel for
Derek C. Court records indicate that Derek C.'s postconviction
motion was denied on January 7, 2013.
¶17 Returning to the matter now before this court, the OLR
filed a disciplinary complaint against Attorney Thompson on
October 24, 2011. The complaint alleged that the September 29,
2008 letter to the court violated four ethical rules:
5
No. 2011AP2458-D
(1) Attorney Thompson violated SCR 20:1.6(a)2 by
revealing information relating to a former client without
the client's informed consent (Count One);
(2) Attorney Thompson violated SCR 20:1.9(c)(1)3 by
using information relating to a former client to the
disadvantage of such client (Count Two);
(3) Attorney Thompson violated SCR 20:1.9(c)(2)4 by
revealing information relating to the representation of a
former client (Count Three); and
2
SCR 20:1.6(a) states that "[a] lawyer shall not reveal
information relating to the representation of a client unless
the client gives informed consent, except for disclosures that
are impliedly authorized in order to carry out the
representation, and except as stated in pars. (b) and (c)."
3
SCR 20:1.9(c)(1) states as follows:
A lawyer who has formerly represented a client in
a matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter:
(1) use information relating to the
representation to the disadvantage of the former
client except as these rules would permit or require
with respect to a client, or when the information has
become generally known.
4
SCR 20:1.9(c)(2) provides as follows:
A lawyer who has formerly represented a client in
a matter or whose present or former firm has formerly
represented a client in a matter shall not
thereafter:
. . . .
(2) reveal information relating to the
representation except as these rules would permit or
require with respect to a client.
6
No. 2011AP2458-D
(4) Attorney Thompson violated SCR 20:1.16(d)5
(declining or terminating representation) (Count Four).
¶18 The OLR sought a public reprimand and payment of
costs, which total $10,304.44 as of December 13, 2012.
¶19 The court appointed Referee James G. Curtis who
conducted an evidentiary hearing on May 14, 2012. Following
post-hearing briefing, the referee issued a report and
recommendation dated August 2, 2012. The referee concluded that
the OLR had proven Counts One through Three of the complaint,
but failed to prove Count Four. The referee recommended the
court publicly reprimand Attorney Thompson and impose costs.
¶20 Attorney Thompson appeals.6 We will affirm a referee's
findings of fact unless they are clearly erroneous. In re
Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305
5
SCR 20:1.16(d) states:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
to protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
6
The OLR does not appeal the referee's conclusion that
Attorney Thompson did not violate SCR 20:1.16(d) (Count Four).
On January 9, 2013, Attorney Thompson moved to stay the court's
decision pending a decision in another matter pending before the
OLR, together with a motion for leave to file a supplemental
appendix. We denied the motion to stay on March 12, 2013; and
we accept the supplemental appendix.
7
No. 2011AP2458-D
Wis. 2d 71, 740 N.W.2d 125. We consider the referee's
conclusions of law de novo. Id.
¶21 We accept the referee's findings of fact and reject
Attorney Thompson's challenge to several of the referee's
factual findings. While there are some discrepancies between
the referee's findings and Attorney Thompson's own perspective
on events, the discrepancies are either of minor legal
significance or do not bear on the allegations of ethical
misconduct. We accept the referee's factual findings and
consider the legal conclusions and recommendation for public
discipline.
¶22 What can a lawyer permissibly disclose in response to
a former client's claim of ineffective assistance of counsel?
When a defendant charges that his or her attorney has been
ineffective, the defendant's lawyer-client privilege is waived
to the extent that counsel must answer questions relevant to the
charge of ineffective assistance. State v. Flores, 170
Wis. 2d 272, 277-78, 488 N.W.2d 116 (Ct. App. 1992); see also
Wis. Stat. § 905.03(4)(c) (the lawyer-client privilege is waived
"[a]s to a communication relevant to an issue of breach of duty
by the lawyer to the lawyer's client or by the client to the
8
No. 2011AP2458-D
client's lawyer").7 The question also implicates the lawyer's
continuing duty of confidentiality.8
¶23 Supreme court rule 20:1.6, the confidentiality rule,
provides, in relevant part:
(a) A lawyer shall not reveal information
relating to the representation of a client unless the
client gives informed consent, except for disclosures
that are impliedly authorized in order to carry out
the representation, and except . . . .
. . . .
(c) A lawyer may reveal information relating to
the representation of a client to the extent the
lawyer reasonably believes necessary:
. . . .
(4) to establish a claim or defense on behalf of
the lawyer in a controversy between the lawyer and the
client, to establish a defense to a criminal charge or
civil claim against the lawyer based upon conduct in
which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer's
representation of the client; . . . .
SCR 20:1.6(a) and (c)(4).
¶24 The published comment to SCR 20:1.6 further informs a
lawyer's decision to disclose confidential client information in
7
We deem unpersuasive the OLR's reliance on In re
Disciplinary Proceedings Against O'Neil, 2003 WI 48, 261
Wis. 2d 404, 661 N.W.2d 813, where we concluded an attorney
violated SCR 20:1.6 by disclosing his client's file and
discussing its contents with the police department without
obtaining client waiver. That case did not involve allegations
of ineffective assistance of counsel.
8
The duty of confidentiality continues after the client-
lawyer relationship has terminated. SCR 20:1.6, ABA cmt. [18].
9
No. 2011AP2458-D
response to an exception set forth in SCR 20:1.6(c). The
comment states, as relevant here:
Paragraph [(c) in the Wisconsin rule] permits
disclosure only to the extent the lawyer reasonably
believes the disclosure is necessary to accomplish one
of the purposes specified. Where practicable, the
lawyer should first seek to persuade the client to
take suitable action to obviate the need for
disclosure. In any case, a disclosure adverse to the
client's interest should be no greater than the lawyer
reasonably believes necessary to accomplish the
purpose. If the disclosure will be made in connection
with a judicial proceeding, the disclosure should be
made in a manner that limits access to the information
to the tribunal or other persons having a need to know
it and appropriate protective orders or other
arrangements should be sought by the lawyer to the
fullest extent practicable.
SCR 20:1.6, ABA cmt. [14].
¶25 It is undisputed that Attorney Thompson did not have
the consent of Derek C., informed or otherwise, directly or by
counsel, to send the letter to the court. However, absent
consent, SCR 20:1.6(c) authorizes disclosures a lawyer
"reasonably believes necessary" to "respond to allegations in
any proceeding concerning the lawyer's representation of the
client." SCR 20:1.6(c)(4). The question then is whether
Attorney Thompson's letter of September 30, 2008 transcended the
boundaries of permissible disclosure in this case. We conclude
it did not.
¶26 The context in which Attorney Thompson opted to send
the letter is of critical importance to our determination.
¶27 Attorney Thompson found his client, Derek C.,
uncooperative during their initial meetings. Derek C. was not
10
No. 2011AP2458-D
forthcoming when asked about possible defenses. At one point
Derek C. suggested that the victim's older brother, who
allegedly witnessed the sexual assault, would change his story.
Attorney Thompson became concerned that Derek C. intended to
suborn perjury. Indeed, he later disclosed that much of his
trial strategy was influenced by his efforts to manage this
aspect of Derek C.'s defense. Some six months after commencing
representation and only a few weeks before trial, Derek C.
provided him with a possible alibi defense. Attorney Thompson
duly filed a motion to extend the time for filing an alibi
defense, investigated the matter, interviewed the named
witnesses, and concluded the proffered alibi defense was not
viable. He thus opted not to use the alibi defense at trial.
He withdrew as counsel prior to sentencing.
¶28 The interactions between successor counsel, Attorney
Leeper, and Attorney Thompson also influenced Attorney
Thompson's decision to send the letter to the court. Between
May and September 2008, Attorneys Leeper and Thompson exchanged
a series of e-mails in which Attorney Leeper repeatedly
requested the case file maintained by Attorney Thompson,
including billing statements. Attorney Leeper asked questions
about the trial proceedings and alluded to a likely ineffective
assistance of counsel claim. Attorney Leeper repeatedly asked
to meet with Attorney Thompson. Attorney Leeper also contacted
the SPD for assistance obtaining the file. The SPD, in turn,
contacted Attorney Thompson to confirm whether he had given
Attorney Leeper the file.
11
No. 2011AP2458-D
¶29 Attorney Thompson had already given most of the case
file to the lawyer who represented Derek C. at sentencing.
Attorney Thompson later acknowledged his irritation with the
tendency of appellate counsel to pursue ineffective assistance
of counsel claims. He sent the few file materials still in his
possession to Attorney Leeper and basically advised Attorney
Leeper to get on with the anticipated ineffective assistance of
trial counsel claim. The e-mail exchanges between Attorney
Leeper and Attorney Thompson reflect the two lawyers'
fundamentally different perspectives regarding the viability of
Derek C.'s alibi defense and the role of trial counsel in
postconviction proceedings.
¶30 On July 7, 2008, Attorney Leeper filed the expected
postconviction motion on behalf of Derek C. The motion was
sweeping in its allegations of Attorney Thompson's alleged
ineffective assistance. The motion stated:
1. Trial counsel did not spend sufficient time
meeting with the defendant . . . .
2. Trial attorney failed to properly prepare
the defendant to testify.
3. Trial counsel failed to investigate and
explore the defendant's alibi defense.
[4.] Trial counsel withdrew the defendant's alibi
defense——the only defense the defendant had.
5. [Trial] counsel failed to interview, call,
and prepare crucial witnesses.
6. Trial counsel failed to investigate and
introduce evidence of other incidences of sexual
assault of the victim.
12
No. 2011AP2458-D
7. Trial counsel failed to file the standard
demand for discovery as provided for by sec. 971.23
Wis. Stats.
8. Trial counsel's failure to make a discovery
request for exculpatory evidence under sec. 971.23 led
to the inability to use clearly exculpatory evidence
effectively.
9. Trial counsel failed to prepare a theory of
the case or present a logical and consistent defense
to the jury.
10. Trial counsel never made use of the
presumption that an offer to take a polygraph supports
the credibility of a witness.
¶31 Attorney Leeper did not provide Attorney Thompson with
a courtesy copy of this motion. Attorney Thompson learned of
the motion from the district attorney, who contacted him to
discuss the alibi defense claims.
¶32 Attorney Thompson thought Attorney Leeper was
intentionally and inappropriately excluding him from the
postconviction process. He explained his perspective:
[T]he status of a trial attorney in a Machner hearing
is not that of just another witness; instead, that
attorney has a status analogous to that of a necessary
party to the proceedings, that his knowledge of the
proceedings and claims against him cannot be limited
by the court or anyone else in any way, that he has
standing to assert his rights to be informed and to
appear, and indeed, that it is even questionable if
such attorney can properly be sequestered during the
proceedings.
¶33 Attorney Thompson's concerns were exacerbated by
Attorney Leeper's ensuing motions seeking to declare Attorney
13
No. 2011AP2458-D
Thompson as an adverse witness.9 Attorney Thompson felt that
Attorney Leeper was "acting inappropriately trying to prejudice
the court and exclude [Attorney Thompson's] proper role . . . ."
He was disturbed by Attorney Leeper's strategy. He was
concerned the court would rule on the motions in advance of the
hearing. In this context, he sought and received permission
from the court to respond to the extensive claims of his alleged
ineffective assistance. The fact that Attorney Thompson sought
and obtained leave of the court to respond to the motions is
critical to our ruling in this case.
¶34 Attorney Thompson's six-page, single-spaced letter
directed to Judge Counsell was thorough in its response and
admittedly scathing of both his former client and Attorney
Leeper. The letter included:
• Thorough discussion of Attorney Thompson's early
communications with the client with reference to the
defendant's father.
• Details of an early discussion with the client
about alibi defenses, informing the court that the
9
One motion entitled, "Motion for Rulings Prior to
Hearing," sought to call Attorney Thompson as an adverse witness
at the Machner hearing based on allegations that Attorney
Thompson "refused to turn over the Defendant's trial file until
appellate counsel pointed out the ethical obligation to do so
and asked the State Public Defender to intervene. [Attorney
Thompson] has also refused to talk with appellate counsel about
the case and has said he will talk only in response to a
subpoena."
14
No. 2011AP2458-D
defendant had never provided alibi information until the
end of the June hearing.
• Reference to Attorney Thompson's March letter to
the defendant, a confidential letter regarding plea
discussions, and not a part of the court file.
• Describing his client's demeanor as "calm,
deliberate, articulate, glib, impenetrable and cocky."
• Disclosing his conversations with potential alibi
witnesses and noting the deficiencies in their
recollections. He dismissed the experts retained by
appellate counsel, questioning the integrity of their
conclusions and suggesting that his own opinions on
truthfulness should be admissible.
• Detailing his response to the director of the
SPD, claiming that appellate counsel was developing a "new"
case and telling her about the "exploding alibi" in this
case. He stated that another witness, J.S., had perjured
herself in an affidavit submitted by Mr. Leeper in support
of the Motion for New Trial.
¶35 In assessing whether this letter violated SCR 20:1.6,
the OLR and the referee relied on American Bar Association
Formal Opinion 10-456, issued on July 14, 2010 (Formal Opinion).
¶36 The Formal Opinion concludes that a criminal defense
lawyer accused of ineffective assistance of counsel by a former
client cannot disclose confidential information to defend
against the former client's claim of ineffective assistance of
15
No. 2011AP2458-D
counsel unless the disclosure is made in a court-supervised
setting. The Formal Opinion states:
[A] lawyer may disclose information protected by the
rule only if the lawyer "reasonably believes [it is]
necessary" to do so in the lawyer's self-defense. The
lawyer may have a reasonable need to disclose relevant
client information in a judicial proceeding to prevent
harm to the lawyer that may result from a finding of
ineffective assistance of counsel. However, it is
highly unlikely that a disclosure in response to a
prosecution request, prior to a court-supervised
response by way of testimony or otherwise, will be
justifiable.
ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 10-456
(2010). Referee Curtis deemed this opinion persuasive,
concluding that "[p]ermitting disclosure of client confidential
information outside court-supervised proceedings undermines
important interests protected by the confidentiality rule."
¶37 Defense counsel preparing to respond to a motion
alleging ineffective assistance of counsel must be mindful of
continuing ethical obligations to former clients. As written,
however, Wisconsin's confidentiality rule does not limit
permitted disclosures to a "court-supervised" setting. We
decline to impose this restriction on our rule generally or in
this case specifically. Moreover, the Formal Opinion issued
after Attorney Thompson sent the September 29, 2008 letter; this
ethical guidance was not available to Attorney Thompson when he
sent the letter.
¶38 We turn to the question whether it was permissible for
Attorney Thompson to reveal the contents of the September 29,
2008 letter. A lawyer responding to claims of ineffective
16
No. 2011AP2458-D
assistance of counsel must limit his or her disclosures to the
"extent the lawyer reasonably believes necessary." As the
comment to SCR 20:1.6 cautions, a disclosure "adverse to the
client's interest should be no greater than the lawyer
reasonably believes necessary to accomplish the purpose."
SCR 20:1.6, ABA cmt. [14]. In addition, as the referee
correctly observes, it is not enough that Attorney Thompson
genuinely believed the particular disclosure was necessary; the
lawyer's belief must be objectively reasonable. See, e.g.,
SCR 20:1(l) (defining the term "reasonably believes" to mean
that a lawyer believes the matter in question and that the
circumstances are such that the belief is reasonable).
¶39 The OLR contends, and the referee agreed, that the
disclosures in the letter were not objectively reasonable. The
OLR asserts:
Challenging a client's alibi, discussing
conversation[s] with his client's family members,
commenting on his client's demeanor and integrity,
dismissing the testimony of potentially favorable
defense witnesses, etc. directly impugned the client
and improperly revealed critical information related
to the representation. It is difficult to construct a
more devastating attack by an attorney on his own
client.
¶40 The referee agreed. He deemed the content and tone of
Attorney Thompson's letter damaging to the former client's
position and expressed concern that it provided the prosecution
with a "road map" and undue advantage in the presentation of
evidence at the Machner hearing. Indeed, the referee had harsh
words for Attorney Thompson:
17
No. 2011AP2458-D
Mr. Thompson's letter represents his uncontrolled rant
and musings about his representation of Derek C., and
the efforts of Mr. Leeper, all in the context of
Mr. Thompson's natural tendency to defend and
vindicate his own conduct in the handling of the
criminal trial. Both the content and tone of the
letter were disparaging and tended to vilify and
impugn the position of his former client. While
Mr. Thompson clearly didn't agree with that position,
he had an obligation to refrain from unfairly
maligning Derek C.'s position before the Machner
hearing was ever called to order. And contrary to
Mr. Thompson's position, the content of the letter was
not identical to the content of Mr. Thompson's Machner
testimony had the 9/29/08 letter never been sent.
This is because the content of the letter was not
filtered through the adversary process, or the
judiciary's role in limiting the extent of the
defendant's waiver of the lawyer-client privilege.
¶41 Our rule does not limit permissible disclosures to
judicially supervised settings so we reject that aspect of the
referee's statement. We agree that the tone of the letter is
abrasive and that Attorney Thompson expresses contempt for both
his former client and successor counsel. This angry rhetoric
pervades Attorney Thompson's appellate brief, as well. While
unprofessional, it is not necessarily unethical.
¶42 We consider the context in which this letter was sent.
Attorney Thompson was affronted that Attorney Leeper did not
copy him on the court filings alleging, in extremely broad
terms, that he rendered Derek C. ineffective assistance and
seeking to limit his testimony in response to these claims. The
referee observed that "[Attorney] Thompson was an important and
essential witness at the Machner hearing, [but] he did not have
the status of a 'necessary party.'" He was no longer counsel of
record for Derek C. As such, Attorney Leeper was not required
18
No. 2011AP2458-D
to provide him with copies of the postconviction motions. To
the extent he thought otherwise, Attorney Thompson was mistaken.
¶43 Generally, however, it is advisable and a matter of
professional courtesy for postconviction/appellate counsel to
provide former counsel with a copy of a motion alleging he or
she rendered ineffective assistance. Certainly, Attorney
Leeper's decision not to provide copies to Attorney Thompson
contributed to Attorney Thompson's belief that Attorney Leeper
was improperly seeking to interfere with his opportunity to
respond to the allegations.
¶44 The OLR and the referee chastise Attorney Thompson for
placing the desire to defend his professional reputation over
the interests of his former client. Defending one's
professional reputation is not among the permitted exceptions to
the confidentiality rule. The record reflects, however, that
Attorney Thompson's concerns were not solely for his reputation.
¶45 As the letter and the testimony at the ensuing Machner
hearing make clear, Attorney Thompson thought his former client
intended to suborn perjury; his trial strategy was deliberate
and reflected an effort to manage this concern. A lawyer with a
potentially perjurious client must contend with competing
considerations——duties of zealous advocacy, confidentiality, and
loyalty to the client on the one hand, and a responsibility to
the courts and our truth-seeking system of justice on the other.
State v. McDowell, 2003 WI App 168, ¶54, 266 Wis. 2d 599, 669
N.W.2d 204 (citing People v. DePallo, 754 N.E.2d 751, 753
19
No. 2011AP2458-D
(2001)). And, as the postconviction court would later observe,
"[t]he perjury concerns were real."10
¶46 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. Attorney Thompson asserts that "a
petitioner [seeking] relief cannot allege that he was deprived
of his constitutional rights and then invoke the shield of the
attorney-client privilege to prevent an accurate determination
of the merit of his claim," citing Waldrip v. Head, 532
S.E.2d 380 (2000) (quoting Roberts v. Greenway, 211 S.E.2d 764,
767 (1975).
¶47 The postconviction motion was utterly sweeping in its
criticism of Attorney Thompson's representation of Derek C. at
trial. It was foreseeable that responding, even in a limited
way, to each of the many allegations of misconduct would
necessitate significant disclosures.
¶48 Attorney Thompson was required to limit his
confidential disclosures as reasonably necessary to respond to
his former client's allegations. He was not, however, required
to "fall on his sword" to enable his former client to obtain a
new trial. See, e.g., Hicks v. Nunnery, 2002 WI App 87, ¶72,
10
We take judicial notice of the circuit court's
disposition of the postconviction motion. State v. Copeland,
No. 2006CF98, Order Denying PostConviction Motions (Clark County
Cir. Ct., Jan. 7, 2013), Jon M. Counsell, presiding.
20
No. 2011AP2458-D
253 Wis. 2d 721, 643 N.W.2d 809 (rejecting the notion that an
attorney facing a former client's allegations of ineffective
assistance of counsel remains under a duty to "vigorously
represent" the former client). Rather, the attorney's duty is
to testify truthfully regarding his or her representation of the
former client, so that the postconviction court can properly
evaluate the defendant's Sixth Amendment claim.
¶49 Finally, we are mindful that Attorney Thompson did
request and receive the circuit court's permission to address
"certain motions and assertions that Attorney Leeper has been
making" and "to respond to these and other issues by the close
of business on Monday, September 29th."
¶50 We caution lawyers 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." See 2011 Formal Op. 16, North Carolina
State Bar Ethics Opinion (January 27, 2012). Typically, the
better practice is to wait for a subpoena and the Machner
hearing before disclosing confidential client information. In
the context of this particular case, we decline to hold that
Attorney Thompson's letter of September 29, 2008 violated
SCR 20:1.6(a).
¶51 The OLR also alleged, and the referee concluded, that
Attorney Thompson violated SCR 20:1.9(c), entitled "Duties to
former clients." The rule provides, as relevant here:
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No. 2011AP2458-D
A lawyer who has formerly represented a client in
a matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter:
(1) use information relating to the
representation to the disadvantage of the former
client except as these rules would permit or require
with respect to a client, or when the information has
become generally known; or
(2) reveal information relating to the
representation except as these rules would permit or
require with respect to a client.
(Emphasis added). Here, the conclusion that Attorney Thompson
violated SCR 20:1.9 was predicated on a violation of SCR 20:1.6.
As we have concluded that SCR 20:1.6 did not prohibit the
disclosure at issue, we likewise conclude that Attorney Thompson
did not violate SCR 20:1.9.
¶52 IT IS ORDERED that the complaint is dismissed. No
costs.
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No. 2011AP2458-D.awb
¶53 ANN WALSH BRADLEY, J. (dissenting). I disagree with
a majority of this court when it opines that the facts here do
not constitute a violation of the confidentiality rule.
¶54 A fundamental principle in the attorney-client
relationship is that, in the absence of the client's informed
consent or a specific exception, the attorney must not reveal
information relating to the representation. This principle is
essential to the trust that is the hallmark of the attorney-
client relationship.
¶55 Supreme court rule 20:1.6, the confidentiality rule,
embodies this fundamental principle. It promotes competent and
effective representation by encouraging clients to speak frankly
with their attorneys while protecting clients from the
disclosure of embarrassing and potentially legally damaging
information. It provides in relevant part:
(a) A lawyer shall not reveal information relating to
the representation of a client unless the client gives
informed consent, . . . except . . . .
(c) A lawyer may reveal information relating to the
representation of a client to the extent the lawyer
reasonably believes necessary: . . . .
(4) . . . to respond to allegations in any proceeding
concerning the lawyer's representation of the
client . . . .
¶56 Here there is no dispute that the client did not give
consent. The issue then becomes whether the attorney's
disclosure of information falls within the relevant exception in
sub. (4). I conclude it does not. Because the September 29,
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No. 2011AP2458-D.awb
2008 letter falls outside of this recognized exception, I
conclude that there was a violation of SCR 20:1.6.
¶57 The essence of the majority's analysis is that the
disclosures were permitted here because the rule does not
expressly limit permissible disclosures of attorney-client
communications to only judicially supervised settings. ("Our
rule does not limit permissible disclosures to judicially
supervised settings . . . ." Majority op., ¶41; see also ¶51.)
¶58 Unlike the majority, I think that the only reasonable
interpretation of sub. (4) is that the disclosure of information
must be in a court setting, i.e. a judicially supervised
setting. Subsection (4) allows for disclosure of information
"to respond to allegations in any proceeding concerning the
lawyer's representation of the client." Under the facts of this
case, the appropriate proceeding is the Machner hearing, where
the attorney responds to allegations of ineffective
representation.1
¶59 As recognized by the majority, the referee had harsh
words for Attorney Thompson. Majority op., ¶40. The referee
admonished Thompson for "unfairly maligning Derek C.'s position
before the Machner hearing was ever called to order." Id. Most
importantly, the referee understood the importance of having the
communication "filtered through the adversary process, or the
judiciary's role in limiting the extent of the defendant's
waiver of the lawyer-client privilege." Id.
1
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Wis.
App. 1979).
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No. 2011AP2458-D.awb
¶60 At a Machner hearing, the disclosure of information is
subject to a judicial determination of relevance and privilege.
The judicial proceeding provides a necessary check on the scope
of the disclosure, assuring that the disclosure of confidential
information involves only that which is necessary to resolve the
claim.
¶61 Even if the majority were correct that disclosure is
permitted outside of judicially supervised proceedings, it
appears to me that the breadth of the disclosures in the
September 29, 2008 letter went beyond the bounds reasonably
necessary to respond to Thompson's pre-Machner motions.2
2
Findings of Fact 45 of the Referee's Report states:
The 9/29/08 letter clearly revealed client information
to the court, and much of it was in the nature of
confidential information. There was a thorough
discussion of Mr. Thompson's early communications with
the client with reference to the defendant's father
who "suspected that the children and the victim's
family were engaged in sexual abuse." Mr. Thompson
related an early discussion with the client about
alibi defenses but informed the court that the
defendant had never provided alibi information until
the end of the June hearing. There is reference to
Mr. Thompson's March letter to the defendant, a
confidential letter regarding plea discussions which
was certainly not a part of the court file. In
addressing the defendant's lack of communication and
cooperation, Mr. Thompson described his demeanor as
"calm, deliberate, articulate, glib, impenetrable and
cocky." Mr. Thompson disclosed his conversations with
potential alibi witnesses and noted the deficiencies
in their recollections. He dismissed the experts
retained by appellate counsel, questioning the
integrity of their conclusions and suggesting that his
own opinions on truthfulness should be admissible.
Mr. Thompson detailed his response to the Director of
the State Public Defender, claiming that appellate
counsel was developing a "new" case and telling her
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No. 2011AP2458-D.awb
¶62 The majority states that "[t]he fact that Attorney
Thompson sought and obtained leave of the court to respond to
the motions is critical to our ruling in this case." Majority
op., ¶33. However, permission to respond to a motion is not
permission to go beyond the limits of the confidentiality rule
embodied in SCR 20:1.6, nor to violate the principles of
attorney-client privilege.
¶63 The referee in this case agreed with the assertion of
the OLR that the disclosures in the letter were not objectively
reasonable. The OLR summarized the contents of the September
29, 2008 letter as follows:
Challenging a client's alibi, discussing
conversation[s] with his client's family members,
commenting on his client's demeanor and integrity,
dismissing the testimony of potentially favorable
defense witnesses, etc. directly impugned the client
and improperly revealed critical information related
to the representation. It is difficult to construct a
more devastating attack by an attorney on his own
client.
Majority op., ¶39.
¶64 In arriving at the conclusion that the disclosures in
the letter were not objectively reasonable, the referee made
detailed findings of fact regarding the contents of the letter.
See ¶61 n.2 supra. There is nothing to indicate that those
findings are clearly erroneous.
about the "exploding alibi" in this case. He stated
that another witness, [] had perjured herself in an
affidavit submitted by Mr. Leeper in support of the
Motion for New Trial.
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No. 2011AP2458-D.awb
¶65 Accordingly, for the reasons set forth above, I
respectfully dissent.
¶66 I am authorized to state that CHIEF JUSTICE SHIRLEY S.
ABRAHAMSON joins this dissent.
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No. 2011AP2458-D.awb
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