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,

 Complainant-Respondent,

 v.

Peter J. Thompson,

 Respondent-Appellant.

FILED

MAY 20, 2014

Diane M. Fremgen

Clerk of Supreme Court

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

¶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.
No. 2011AP2458-D 

3

¶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).
No. 2011AP2458-D 

4

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.
No. 2011AP2458-D 

5

¶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:
No. 2011AP2458-D 

6

(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.
No. 2011AP2458-D 

7

(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.
No. 2011AP2458-D 

8

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 
No. 2011AP2458-D 

9

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 clientlawyer relationship has terminated. SCR 20:1.6, ABA cmt. [18].
No. 2011AP2458-D 

10

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 
No. 2011AP2458-D 

11

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.
No. 2011AP2458-D 

12

¶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.
No. 2011AP2458-D 

13

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 
No. 2011AP2458-D 

14

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."
No. 2011AP2458-D 

15

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 
No. 2011AP2458-D 

16

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 
No. 2011AP2458-D 

17

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:
No. 2011AP2458-D 

18

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 
No. 2011AP2458-D 

19

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 
No. 2011AP2458-D 

20

(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.
No. 2011AP2458-D 

21

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:
No. 2011AP2458-D 

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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.
No. 2011AP2458-D.awb

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¶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 attorneyclient 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, 
No. 2011AP2458-D.awb

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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).
No. 2011AP2458-D.awb

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¶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 
No. 2011AP2458-D.awb

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¶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.
No. 2011AP2458-D.awb

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¶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. 
No. 2011AP2458-D.awb

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