State Bar of Wisconsin

Vol. 77, No. 2, February 2004

Conduct Outside the Law Office
Ethics Rules Apply 24-7

by Dean R. Dietrich

Question

I know that the Rules of Professional Conduct apply when I am practicing law. Do the rules apply to my conduct outside of the office?

Answer

The Rules of Professional Conduct for Attorneys apply to all Wisconsin-licensed attorneys 24 hours a day, 7 days a week. While a vast majority of the rules relate to the practice of law, the rules also govern the behavior of lawyers outside the direct practice of law because the conduct of a lawyer is governed by these rules anywhere and at any time.

The most important rule that speaks to the private conduct of a Wisconsin lawyer is Supreme Court Rule 20:8.4, entitled "Misconduct." This rule identifies a series of acts or conduct that are considered "professional misconduct" under the rules and may subject the lawyer to discipline from the Wisconsin Supreme Court. A review of potential conduct that could be a violation shows that a lawyer may be subject to discipline for behavior both while actively engaged in the business of lawyering or while acting in a personal capacity or situation. SCR 20:8.4 provides that it is professional misconduct for a lawyer to:

• violate or attempt to violate any of the Rules of Professional Conduct;
• knowingly assist or induce another person to violate the Rules of Professional Conduct;
• violate the Rules of Professional Conduct through the acts of another person where the lawyer exercises some degree of control or influence over the acts of that person;
• commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer;
• engage in conduct that involves dishonesty, fraud, or deceit;
• engage in conduct that involves misrepresentation by the lawyer;
• state or imply an ability to exercise improper influence over a government agency or a government official;
• violate a statute, supreme court rule, supreme court order, or supreme court decision that involves the regulation of lawyer conduct; or
• violate the attorney's oath.

As you can see, the conduct that is addressed in SCR 20:8.4 can occur while engaged in the practice of law or while acting in a personal capacity.

The attorney's oath often is considered as a "catch all" to address inappropriate personal behavior of a lawyer. When we said the oath at our swearing in, we lawyers pledged to:

• support the U.S. and Wisconsin Constitutions;
• maintain the respect due to courts of justice and judicial officers;
• not counsel or maintain any suit or proceeding that would be unjust, or any defense that is not honestly debatable;
• maintain the confidence and preserve the secrets of each client;
• abstain from all offensive personality;
• advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause;
• never reject, for any consideration personal to the lawyer, the cause of the defenseless or oppressed, or to delay any person's cause out of malice.

If a lawyer, based on his or her behavior, does not act according to the commitments contained in the attorney oath, the lawyer could be disciplined under SCR 20:8.4. The charge of a rule violation based upon the attorney's oath often is reserved for very serious conduct or behavior, although the oath's ambiguous language allows for a great deal of subjective interpretation.

Each of these instances of a potential rule violation for misconduct applies to the lawyer's personal behavior even outside the law office or the courtroom. Lawyers should be aware that their behavior, at any time, is subject to scrutiny and their law license could be affected by their personal and professional conduct.

Lawyers also are reminded of Chapter 62 of the Wisconsin Supreme Court Rules, addressing lawyers' decorum in the courtroom. While these rules are not subject to enforcement by the Office of Lawyer Regulation, they are cited by judges at all levels as a basis for a court ruling and possible sanctions. Many aspects of SCR Chapter 62 relate to litigation procedures, but the rules also speak to lawyer conduct in a litigation setting.

As caretakers of the justice system and officers of the court, the behavior of lawyers, both in their professional or business capacity and in their personal capacity, is subject to scrutiny and review by the Wisconsin Supreme Court under the Rules of Professional Conduct for Attorneys. Attorneys should be ever mindful that their personal and professional behavior must be consistent with both the language and the spirit of the Rules of Professional Conduct.

Wisconsin Lawyer