Lawyer Can’t Name-Drop Clients Without Consent

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By Joan C. Rogers

Lawyers can’t unilaterally list clients in marketing materials or name clients for other personal purposes, according to an April 4 opinion from the Wisconsin state bar’s ethics committee (Wisconsin State Bar Comm. on Prof’l Ethics, Formal Op. EF-17-02, 4/4/17).

It’s unethical to reveal a client’s identity unless the client gives informed consent, the disclosure is impliedly authorized to carry out the client’s representation, or one of the exceptions in the confidentiality rule applies, the committee advised.

Lawyer often wonder whether it’s okay to mention clients’ names when they’re chatting at cocktail parties or want to brag about their work. The opinion says it’s not ok without the client’s say-so.

The opinion focuses on the question of naming clients when it isn’t necessary for the client’s case but the lawyer wants to deploy the name for her own purposes, such as listing representative clients in marketing materials, providing references to prospective clients, or identifying clients in articles or presentations.

This disclosure isn’t permissible without client consent even if the representation is a matter of public record, the disclosure wouldn’t hurt the client, or the case is far past, the committee concluded.

What’s in a Name?

The committee said the duty of confidentiality under Wisconsin Rule of Professional Conduct 1.6 is extremely broad; the rule protects all information relating to the representation of a client, whatever its source.

It’s hard to imagine information more closely linked to a client’s representation than the client’s identity, the committee said.

The constraints on disclosing client identity apply not only to current clients but also to prospective clients, former clients and deceased clients, it advised.

The committee said that Rule 1.6 shields information that’s known to others or available from public sources, so a client’s identity remains confidential even if it’s already been disclosed in public.

It doesn’t matter whether clients have asked for their identity to be kept secret or whether airing their identity would be embarrassing or damaging, according to the opinion.

Also, a lawyer can’t unilaterally reveal a client’s identity in the belief it’s not privileged information, because the attorney-client privilege doesn’t determine what information a lawyer may voluntarily reveal, the panel said.

The committee said its position on the confidentiality of client identity is consistent with opinions from other jurisdictions. In a footnote, it cited Illinois Ethics Op. 12-03 (2012) and Op. 97-1 (1977); Iowa Ethics Op. 97-4 (1977); Nevada Ethics Op. 41 (2009); and New York State Ethics Op. 907 (2012).

The committee withdrew Wisconsin Ethics Op. E-93-5, which it said incorrectly stated that client identity isn’t information relating to the representation of the client.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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