                                                             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.


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                                                                         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:




                                         21
                                                           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.




                                     22
                                                                  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,


                                           1
                                                                            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).

                                                 2
                                                                 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
                                3
                                                          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.

                                        4
                                                     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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