WISCONSIN LEGISLATIVE COUNCIL
Jessica Karls-Ruplinger, Acting Director

TO:

SENATOR ROGER ROTH

FROM: Jessica Karls-Ruplinger, Acting Director
RE:

Considerations Relating to Statutory Confidentiality and Attorney-Client
Relationships in a Merger of the Legislative Council and Legislative Reference
Bureau

DATE:

February 11, 2019

During my presentation to Speaker Vos, Senator Shilling, Representative Hintz, and you
on February 7, 2019, about a proposed merger of the Legislative Council (LC) and Legislative
Reference Bureau (LRB), I raised questions for you to consider relating to: (1) LC and LRB
confidentiality under state statute; and (2) LRB’s recognition of an attorney-client relationship
between LRB attorneys and persons with drafting privileges.
This memorandum, prepared at your request, provides background information on
statutory confidentiality and on LRB’s policy on attorney-client relationships, and it identifies
questions relating to these issues for the Legislature to consider and address prior to any merger
of the LC and LRB. This memorandum is intended as an overview of these issues and not as a
comprehensive discussion. If you have any questions or would like additional information, I am
available to discuss these issues in further detail with you.
STATUTORY CONFIDENTIALITY
Under state statute, each of the nonpartisan legislative service agencies is required to
observe the confidential nature of certain communications. There is a unique statutory
confidentiality requirement for each agency. The following are the confidentiality requirements
for the LC and LRB:


Legislative Council: “The legislative council staff … shall at all times observe the
confidential nature of the research and drafting requests received by it.” [s. 13.91
(intro.), Stats.]

One East Main Street, Suite 401 • Madison, WI 53703-3382
(608) 266-1304 • Email: leg.council@legis.wisconsin.gov
http://www.legis.wisconsin.gov/lc

 -2

Legislative Reference Bureau: “The legislative reference bureau ... shall at all times
observe the confidential nature of the reference or drafting requests received by it.”
An exception is made for drafting files of introduced legislation; however, “[r]ecords
of drafting requests which did not result in legislation introduced shall remain
confidential at all times.” [s. 13.92 (intro.) and (1) (a) 3. and (c), Stats.]

ATTORNEY-CLIENT RELATIONSHIP
LRB’s Policy
According to its Drafting Manual, the LRB recognizes an attorney-client relationship with
each member of the Legislature and other persons with drafting privileges:
1.01 CLIENT AND CONFIDENTIALITY. LRB attorneys maintain
an attorney-client relationship with each member of the legislature
and other persons with drafting privileges under s. 13.92 (1) (b) 1.,
stats., with respect to the provision of drafting and other legal
services. Communications between a legislative attorney and a
legislator or his or her staff or agent, or other person with drafting
privileges, are confidential. The following communications,
however, are not confidential:
(1) Communications that are included within the drafting file of an
introduced proposal. See s. 13.92 (1) (c), Stats.
(2) Communications that the legislator, directly or through staff or
other agents, has consented to be disclosed.
(3) Communications that are otherwise exempt from confidentiality
under the supreme court rules of professional conduct.
[LRB, Bill Drafting Manual 2019-2020, s. 1.01 (Sept. 2018).]
Under the statutes, all of the following persons have drafting privileges with the LRB
and, as a result of LRB’s policy, have an attorney-client relationship with LRB attorneys:


Any member or member-elect of the Legislature and, on behalf of each committee
thereof, the chairperson.



Any agency, as defined in s. 16.70 (1e), Stats.,1 created under ch. 13, 14, 15, or 758,
Stats., which includes agencies in the executive and judicial branches.

Section 16.70 (1e), Stats., defines “agency” as an office, department, agency, institution of higher
education, association, society or other body in state government created or authorized to be created by the
constitution or any law, which is entitled to expend moneys appropriated by law, including the Legislature and the
courts, but not including an authority.
1

 -3

The chief clerk of either house of the Legislature for requests pertaining to the
operation of the Legislature.



A party caucus of either house of the Legislature.

Rules of Professional Conduct
An attorney licensed in Wisconsin must comply with rules of professional conduct
adopted by the Wisconsin Supreme Court. The rules are codified in ch. 20 of the Supreme Court
Rules (SCR). When an attorney has an attorney-client relationship with a client, the attorney
must comply with certain requirements in that attorney-client relationship. For example, the
attorney has a duty of confidentiality and a duty of loyalty to a client.
Under the duty of confidentiality, an attorney generally may 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. In addition,
an attorney must make reasonable efforts to prevent the inadvertent or unauthorized disclosure
of, or unauthorized access to, information relating to the representation of a client. [SCR 20:1.6
(a) and (d).]2
Under the duty of loyalty, an attorney may not represent a client if the representation
involves a concurrent conflict of interest.3 However, an attorney may represent a client,
notwithstanding the existence of a concurrent conflict of interest, if: (1) the attorney reasonably
believes that the attorney will be able to provide competent and diligent representation to each
affected client; (2) the representation is not prohibited by law; (3) the representation does not
involve the assertion of a claim by one client against another client represented by the attorney
in the same litigation or other proceeding before a tribunal; and (4) each affected client gives
informed consent, confirmed in a writing signed by the client. [SCR 20:1.7.]
CONSIDERATIONS
Statutory Confidentiality
The LC has a broader statutory confidentiality requirement than the LRB. As described
above, the LC must treat research and drafting requests as confidential. The LRB must treat
reference and drafting requests as confidential, except the material contained in drafting files

Related to confidentiality is the attorney-client privilege, which is typically asserted in a judicial
proceeding. Under the attorney-client privilege, an attorney’s client has a right to withhold and prevent others,
including the attorney, from disclosing information about communications between the attorney and client. [s.
905.03, Stats.]
3 A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to
another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited
by the attorney’s responsibilities to another client, a former client, or a third person or by a personal interest of the
attorney. [SCR 20:1.7 (a).]
2

 -4for introduced legislation. The LC does not have an exception to its confidentiality for
introduced legislation.
Given the differences between the LC and LRB confidentiality statutes, the Legislature
should consider the statutory confidentiality of a merged agency and how to reconcile the
existing statutes. In reconciling the confidentiality requirements, the Legislature might consider
the following questions:


If the LC and LRB attorneys serve as both drafters and committee staff in a merged
agency, will the drafting exception apply to the drafting work product of all
attorneys?



Will the research now prepared by LC staff be subject to the drafting file exception
under a merged agency?



Should research that is not for purposes of bill drafting be confidential?



Should the structure of two sets of attorneys remain in place, with one set retaining
the LC confidentiality and the other set retaining the LRB confidentiality?



If a drafting file exception is retained in a merged agency, what material should be
included in a drafting file?

Attorney-Client Relationship
If the LC and LRB are merged into a single agency, the Legislature should consider
whether the LRB’s policy on attorney-client relationships applies to all attorneys in a merged
agency or whether the merged agency should recognize, through its structure and functions,
alternatives to LRB’s policy on attorney-client relationships. For example, alternatives could
include recognizing: (1) an attorney-client relationship between legislative attorneys and the
Legislature as a client under an organization as a client model, rather than a model of individual
legislators as clients; (2) limited scope representations, rather than the seemingly broad attorneyclient relationship that is articulated in LRB’s policy; or (3) no attorney-client relationship. The
Legislature might also consider whether legislative attorneys should take additional steps to
increase the likelihood that an attorney-client relationship would be recognized by a court.
If the LRB’s policy is applied to all attorneys in a merged agency, the Legislature should
consider all of the following questions:


If drafting attorneys also serve as committee staff:
o How would the drafting attorneys reconcile their duty of confidentiality with
serving the needs of the committee in responding to questions? Under the duty of
confidentiality, the drafting attorney should only reveal the information contained
in the drafting file because it appears that the client (i.e., the author) has provided
consent to disclose the drafting file contents. How should a drafting attorney

 -5respond when the attorney is asked about information that was part of the drafting
process but not contained in the drafting file?
o How would the drafting attorneys reconcile their role in serving all members of
the committee with their duty of loyalty to the bill author? Serving that dual role
may give rise to a conflict under rules of professional conduct.


Should all attorneys in a merged agency have an attorney-client relationship with any
person who has drafting privileges, including those in the executive and judicial
branches? Should the attorney-client relationship only recognize legislators as clients?

If you have any questions, please feel free to contact me directly at the Legislative Council
staff offices.
JKR:ksm