- Formal Opinion E-09-03: Communications Concerning Attorneys Fees and Expenses: This opinion discusses the new SCR 20:1.5, which sets forth a lawyer’s obligations in communicating with a client concerning fees and expenses.1 The Rule sets forth the information that must be communicated to a client with respect to a lawyer’s fees and describes the circumstances in which information may be conveyed orally or must be conveyed in writing or in a writing signed by the client. Other rules, such as SCR 20:1.0 and SCR 20:1.2, which contain important definitions, are relevant and will be discussed herein.
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- Formal Opinion E-09-02: Obligations of a Prosecutor Dealing with Unrepresented Persons: This opinion discusses a prosecutor’s responsibilities under Wisconsin’s Rules of Professional Conduct for Attorneys (the “Rules”) when contacting unrepresented persons. The first step in analyzing a prosecutor’s obligations under the Rules is defining what is meant by the term “prosecutor.” The former version of the Rules contained no definition of the term and, traditionally, the term “prosecutor” was assumed to refer to a government attorney handling a criminal case. 40 KB
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- Formal Opinion E-07-01: Contact with Current and Former Constituents of a Represented Organization: This Opinion discusses the extent to which SCR 20:4.2 prohibits contact with current and former constituents of an organization when the organization is represented with respect to a matter. The Opinion also discusses the obligations under the Rules of Professional Conduct of lawyers seeking to contact constituents of represented organizations and the obligations of lawyers representing organizations. 100 KB
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- Formal Opinion E-95-4: Lawyer self-help in enforcing fee agreement with clients - State Bar of Wisconsin Ethics Committee: Assuming that a lawyer and client have entered a fee agreement that complies with SCR 20:1.5 and that the client has failed to remain current in payments of the lawyer's fee, may the lawyer use the following self-help remedies to collect the fee: 1) continue the representation but withhold some or all services (e.g., postpone a final hearing on a divorce) until satisfactory payment arrangements are made; 2) withdraw from representation; and 3) if the lawyer withdraws, retain the client's file until satisfactory payment arrangements are made? 9.78 KB
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- Formal Opinion E-94-6: Use of financial planners and registered investment advisors in estate planning law practice - State Bar of Wisconsin Ethics Committee: May a lawyer who practices estate planning establish an arrangement whereby nonlawyer financial planners and registered investment advisors are hired as independent contractors and paid an hourly fee by the lawyer to provide potential clients with a free consultation at which data is gathered for the lawyer's review for estate planning purposes? The lawyer then would consult with the client and provide estate planning services, as appropriate. In addition, the nonlawyer independent contractors may be retained to provide appropriate assistance in preparing necessary documents and transferring assets to accomplish the estate planning objectives approved by the client. 5.32 KB
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- Formal Opinion E-92-1: Conflicts, representation of plaintiff and subrogated insurance carrier - State Bar of Wisconsin Ethics Committee: In pursuing a personal injury case for a plaintiff, an attorney is asked by the plaintiff's medical and hospitalization insurance carrier also to pursue a subrogation claim against the responsible tortfeasor. There are both liability and contributory negligence issues. Initial review indicates that adequate insurance coverage for the other party is not a problem. Under what circumstances, if any, may the attorney represent both the plaintiff and the subrogated insurance carrier without violating the Rules of Professional Conduct? 15.8 KB
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- Formal Opinion E-92-3: A contingent fee contract as collateral for a personal loan to a lawyer - State Bar of Wisconsin Ethics Committee: Assume Attorney A, a sole practitioner, and an individual, Client B, execute a valid personal injury written contingency agreement under SCR 20:1.5(c). Assume further that the written agreement provides for an attorney’s lien consistent with SCR 20:1.8(j)(1) and (2). Disregarding the value of the contingency case or the contingent fee, may Attorney A ethically offer, tender or negotiate the attorney's lien in Client B's case as collateral, assignment or guarantee for a personal loan that Attorney A seeks for himself? Would the answer differ if the proposed lender was a sophisticated commercial lending institution or another party who has no experience as a lender? 8.81 KB
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- Formal Opinion E-91-3: State Public Defender Office workload - State Bar of Wisconsin Ethics Committee: Assuming that a supervising attorney in the Public Defender's Office increases the workload of a staff attorney in excess of caseload standards approved by the State Bar Board of Governors, or some other nongovernmental body, and the staff lawyer declines new matters, may the supervising attorney ethically sanction the lawyer either by terminating the lawyer's employment, withholding compensation or changing the lawyer's responsibilities by transfer? 8.10 KB
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- Formal Opinion E-88-6: Lawyer as witness on behalf of client - State Bar of Wisconsin Ethics Committee: Must an attorney representing a client withdraw from his or her representation of a client in a dispute with a third person involving circumstances that likely would require the attorney, at some stage of litigation, to give testimony from his or her personal knowledge on behalf of the client, which testimony would not be adverse to the client's interest but would be adverse to and challenged by the third person? 7.92 KB
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- Formal Opinion E-87-8: Communications by district attorney with represented criminal defendants and previously represented delinquent child support payors - State Bar of Wisconsin Ethics Committee: Do the disciplinary standards of conduct for lawyers preclude a district attorney from: 1. Mailing or serving copies by other legal means of the state's motions, discovery demands and other formal notices to a defendant in a criminal case who is represented by counsel, where defense counsel is provided with a full and complete copy of all pleadings that are served or mailed to the defendant and the original copies of all pleadings are filed with the court having jurisdiction to hear the criminal case? 2. Sending correspondence in a delinquent child support case when: a. Unrepresented delinquent payor has been represented by counsel at an earlier stage of the proceeding which has been concluded? or b. Unrepresented delinquent payor has other matters pending with the district attorney's office that are unrelated to nonpayment of child support but in which the party is represented by counsel of record? 9.41 KB
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- Formal Opinion E-87-9: Responsibilities of employee/associate lawyer upon death of employer/solo practitioner - State Bar of Wisconsin Ethics Committee: Assuming that a lawyer remains as an associate working as an employee for a solo practitioner and the solo practitioner dies prior to retirement, what are the associate's duties and obligations to clients with matters pending in the solo practitioner's office? For example, what if the personal representative of the estate of the solo practitioner refused to compensate the lawyer for any future services, significantly reduced the compensation or discharged the associate? What duties would the lawyer owe his or her clients at that point? And, assuming the lawyer does owe a duty to them, how should it be discharged? 13.2 KB
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- Formal Opinion E-86-13: Lay employee: Multiple part-time employment with different governmental offices - State Bar of Wisconsin Ethics Committee: An office of the district attorney will be hiring a part-time non-lawyer in the very near future. The County Board is also considering hiring that very same person to fill part-time duties in the Register in Probate's office. The register in probate is appointed and retained at the pleasure of the circuit judge. The register in probate's office is responsible for answering phone calls for the circuit judge when he/she and his/her reporter are on the bench. Additionally, the circuit judge has indicated that he/she may sometimes utilize the part-time employee for various unspecified tasks. 7.96 KB
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- Formal Opinion E-86-2: Office sharing arrangement - State Bar of Wisconsin Ethics Committee: Lawyer A is a recent law school graduate who has opened a law office. A contacts Lawyer B who owns and operates law offices of B, a multi-member law firm which has been in operation for several years. B proposes the following arrangement whereby B would show A the ropes. B would turn over a substantial number of cases to A. In turn, A would turn over half of all the fees earned in those cases referred by B, to B. A would assume full responsibility and B would have no input on how the referred cases are to be processed. Further, A would rent space from B in B's building, and B would provide phone answering services for A. A is to maintain separate malpractice insurance, get his or her own secretary, purchase his or her own share of supplies and pay his or her own share of the phone bill. 11.6 KB
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- Formal Opinion E-85-7: Partner representing partner in litigation - State Bar of Wisconsin Ethics Committee: An attorney, who is a partner in X law firm, is a defendant in a lawsuit brought against the attorney and his wife. The lawsuit involves the private and personal interests of the attorney and is unrelated to the attorney's professional interests. It is expected that the attorney will be a material witness on his own behalf in the lawsuit if it should come to court. May another partner in X law firm represent the attorney and his wife in the lawsuit? 8.46 KB
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- Formal Opinion E-85-8: Representation adverse to former client - State Bar of Wisconsin Ethics Committee: In 1982, a partner in law firm Z defended a former farm implement dealership against the grantor of the dealership in a collection action that was brought after termination of the dealership. As a result of the representation, the partner became familiar with the workings of the dealer's business record keeping methods. The case was settled in 1982, and law firm Z has not represented the dealer since then. Currently, the dealership is attempting to collect the remainder of a bill plus interest for the sale and installation of a milking system to X. X's defense are: (1) the bill is not owed because the work was not completed as originally agreed; and (2) the system was either defective or improperly installed causing a stray voltage problem that resulted in damage to X. 9.59 KB
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- Formal Opinion E-84-1: Lay consulting service - State Bar of Wisconsin Ethics Committee: An opinion regarding the utilization of a lay consulting service in personal injury cases was requested of the Ethics Committee. The service represents that it does not practice law or medicine, but restricts its services to technical, medical-legal consultation and research, and the procurement of expert witnesses. The consulting services are offered on a contingent fee or flat fee basis. 8.31 KB
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- Formal Opinion E-84-17: Payment for referrals from insurance company subsidiary - State Bar of Wisconsin Ethics Committee: An insurance company is creating a subsidiary which will act as a resource center and referral agency for the company's independence agencies. The subsidiary wishes to have available a law firm to accept referrals concerning certain legal problems. The subsidiary proposes to charge a fee for such referrals equalling 2 percent of the fees generated by the law firm handling the referred case. Rather than being a referral commission or finder's fee, the fee charged is intended to cover costs involved in operating the subsidiary. Would it be proper to pay a fee for such referrals? 8.19 KB
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- Formal Opinion E-84-2: Request for extension to answer - State Bar of Wisconsin Ethics Committee: In an action commenced by an attorney, only one of three defendants answered within the prescribed time period. The two defendants did not retain counsel until the day after the expiration of that period. The opposing counsel requested an extension of the period, but the attorney expressed concern that to grant an extension would not be in the best interest of his/her client. Would it be proper to grant an extension? 6.75 KB
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- Formal Opinion E-84-4: Division of legal fees with layperson - State Bar of Wisconsin Ethics Committee: A lawyer handles worker's compensation cases with the aid of a layperson authorized under Wis. Stat. sec. 102.17 (1)(c) (1981-82) to appear before the Department of Industry, Labor and Human Relations (DILHR) hearing examiners in such cases. The lay practitioner acts independent of and is not an employee of the lawyer. Both the lay practitioner and the lawyer are named on retainer agreements with clients so clients understand that they are employing both parties. Either party may perform any of the work involved in any particular case, including drafting and filing documents, attending pre-hearings, hearings and appeals. Fees charged clients would be within DILHR and statutory limits. DILHR determines fees awarded in worker's compensation cases and generally does not apportion fees. Assuming DILHR attorney's fees are awarded to the lawyer, is it ethically proper for the lawyer to divide those fees with the lay practitioner? 8.68 KB
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- Formal Opinion E-84-7: Defense attorney’s duty to bring error to attention of prosecutor and court - State Bar of Wisconsin Ethics Committee: An attorney represents a criminal defendant charged with two misdemeanors. At a court appearance, the district attorney indicates to the court that the state will dismiss one of the charges, but wishes to proceed on the other charge. At that time, the matter is set for a jury trial. A week before trial, the attorney learns from the clerk of court that both cases against the defendant are indicated as dismissed on the court's docket. Does the attorney have an obligation to bring this apparent error to the attention of the district attorney, the court or the court's staff? 8.39 KB
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- Formal Opinion E-84-9: Conflict of interest: Assistant attorney general owning stock in Wisconsin company - State Bar of Wisconsin Ethics Committee: Assistant Attorney General A is a majority shareholder in a Wisconsin construction company that submits bids for state construction work. Although the State Department of Administration handles most of the legal work relating to the contracting process, Department of Justice lawyers routinely review the final contract documents. If litigation arises with regard to such construction contracts, normally an assistant attorney general represents the state in the matter. A's areas of assignment in the Department of Justice does not relate "in any respect to the securing, letting or review of construction contracts." Is it proper for Assistant Attorney General A to (1) be involved with the construction company, and would it (2) be proper for the Department of Justice to provide legal advise and represent state agencies in matters where A's company may be involved? 8.50 KB
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- Formal Opinion E-83-11: Garnishment action to secure fees - State Bar of Wisconsin Ethics Committee: An attorney represents Mr. S in the sale of his business and in a subsequent divorce. After the divorce, Mr. S moves out of Wisconsin without leaving a forwarding address, and without paying the attorney. The attorney reduces the $500 outstanding fee balance to a judgment. Mr. R, the purchaser of Mr. S's business, has been paying Mr. S $515 per month in the following fashion, pursuant to arrangements made for Mr. S's convenience: $400 per month to the clerk of courts for child support and $115 per month to the attorney's trust account for disbursement to the former wife of Mr. S. The attorney understands that legally neither the funds paid to the clerk of courts nor the funds subject to specific directions for disbursement may be attached. See 7A C.J.S. sec. 332. 9.39 KB
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- Formal Opinion E-83-15: Blanket fee arrangement for insurance defense cases - State Bar of Wisconsin Ethics Committee: An insurance company proposes to contract with an attorney to act as defense counsel in personal injury claim matters. The contract would provide for a set fee in each case up to the time of trial. The fee would be a blanket fee, arranged in advance for any case referred to the attorney or his firm. The blanket fee would not take into account the amount of work to be done in each individual case. Is it ethical for an attorney to agree to such arrangement? 8.86 KB
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- Formal Opinion E-82-13: C/I: Criminal court commissioner and public defense work - State Bar of Wisconsin Ethics Committee: You are presently family court commissioner for the county in which you practice, and you are also city attorney for the city in which you practice. Your county has recently established a part-time court commissioner whose duties will primarily consist of presiding at initial appearances in all criminal actions and in both state and municipal forfeiture actions. Your partner engages in criminal defense work and both you and your partner are on the public defender's list for your county. 6.48 KB
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- Formal Opinion E-82-14: C/I: Firm as estate's attorneys--Disclosure of client's confidences - State Bar of Wisconsin Ethics Committee: A husband and wife executed wills disposing of all of their property to the survivor on the death of the first and disposing of the balance of their property on the death of the second of them to their common descendants as well as descendants only of the husband. On the same date the couple executed their wills, they also executed a written contract not to change their wills. The contract clearly expresses the intent that the wills were not to be changed after the death of either of the parties. The husband subsequently died, his will was probated, and his estate was closed. No reference was made in the probate proceedings to an agreement to not change the wills. 16.3 KB
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- Formal Opinion E-82-4: Communication with an adverse party represented by counsel - State Bar of Wisconsin Ethics Committee: An opinion has been requested to the State Bar Professional Ethics Committee concerning the propriety of an attorney for a government agency providing an opposing attorney's client with copies of correspondence sent to the opposing attorney in the following situations: 1. The attorney is involved in a "run-of-the-mill" case, but the client undoubtedly has a vital interest in and concern about the government agency's activities; 2. There are no precedents supporting the attorney's position, and it is suspected the attorney's clients are not apprised of numerous precedents that are consistently adverse to their interests. 9.33 KB
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- Formal Opinion E-82-8: Attorney contacting seminar attendees - State Bar of Wisconsin Ethics Committee: An attorney recently spoke at a seminar regarding estate planning, which was sponsored by an insurance company. Subsequently the insurance company sent the attorney a list of all persons attending the seminar, some of whom indicated in writing that they wished further information, or in the alternative, that they had an interest in estate planning. None of the persons inquiring are the attorney's clients. The attorney inquires as to the propriety of sending a letter in response to those requests stating that he is glad that they had attended, and if they desire further information to contact the attorney. 8.20 KB
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- Formal Opinion E-81-4: Computer trust accounts - State Bar of Wisconsin Ethics Committee: May a lawyer (or a law firm) transfer its accounting to a computer system, and in connection therewith, place all funds received by the lawyer (or the law firm) in one account - the trust account - although the computer system will account for the funds as though two separate accounts existed (client trust account and firm operating account)? 8.99 KB
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- Formal Opinion E-79-2: Mediation of divorces - State Bar of Wisconsin Ethics Committee: A lawyer proposes to provide mediation services to married couples considering divorce. The lawyer proposes to (1) educate the parties as to their legal rights and responsibilities, (2) mediate any disputes which may arise in the course of the settlement negotiations, and (3) draft a separation agreement and related documents and appear in court to process the divorce. The lawyer further indicates s/he will refrain from representing either of the parties in any proceedings between them in the event an agreement cannot be reached and that each of the parties shall obtain an independent evaluation of any proposed marital settlement agreement by legal counsel other than the lawyer-mediator. The question before the committee is whether this conduct is ethical. 7.28 KB
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- Formal Opinion E-79-6: Disposition of unclaimed trust fund accounts - State Bar of Wisconsin Ethics Committee: A. What procedure must a non-profit legal services corporation follow in liquidating its trust funds consisting of unclaimed litigation cost advances which have been made by clients who, after a reasonable effort, cannot be found? B. May a non-profit legal services corporation, provided prior notice is given to its client, transfer unclaimed client trust funds to its general account two years after the case file has been closed, if the corporation after reasonable effort is unable to locate the owners of the funds? 11.5 KB
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- Formal Opinion E-79-7: Representation of business partners - State Bar of Wisconsin Ethics Committee: Attorney A was employed by B and C, who had been partners in a business venture and wished to incorporate. He met with the two men, both individually and as a group, on an extensive basis. He then drew up the necessary papers for incorporation but B and C then abandoned the idea and the papers were never executed. B continued to operate the business alone and under the corporate name. Several months later, he terminated his relationship with A. Nearly a year after the last meeting between A, B, and C, C asked if there would be an annual meeting of the corporation. Apparently misinformed concerning the final results of the earlier meetings, A told C that the corporation had never been formed. C now has asked A to represent him in an action to recover his share of the partnership assets, which would require commencing such action against B. 7.21 KB
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- Formal Opinion E-79-9: Interstate association of law firms - State Bar of Wisconsin Ethics Committee: A Wisconsin lawyers service corporation is located near the Michigan border. It desires to form an association with two Michigan law firms under the following form: Each of the firms would retain its own identity. Each would continue to maintain its own offices, its own trust accounts and would in all respects continue to be independent law firms. Each would, however, agree to provide legal services to clients of the other law firms in this association upon referral of those clients. The Wisconsin corporation would provide service in Wisconsin to the clients of the Michigan associates. It would normally charge the Michigan associates directly for the services provided at its normal hourly rates and the Michigan firms would be responsible to collect the full amount of fees from the client and pay the Wisconsin corporation its portion. Each would maintain separate letterheads identifying its firm name but would show the other firms' names as "Wisconsin office" or "Michigan offices" but 8.29 KB
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- Formal Opinion E-77-5: Propriety of attorney’s disclosure of information upon consent of deceased client’s personal representative - State Bar of Wisconsin Ethics Committee: An attorney was contacted by a husband and wife for the purpose of drafting a will for them. Included in the conversation about the will was a discussion of the appointment of a guardian for the minor children. Several names of possible guardians were suggested and their advisability as guardians was discussed. No guardian was agreed upon before the clients died. The will is now in probate. The appointed guardian ad litem has requested the attorney to testify as to the conversation about the appointment of a guardian. It is likely the personal representative is willing to consent to waiver of the attorney-client privilege so that the attorney could reveal the communication in regard to a possible guardian for the children. Such a disclosure would involve revealing the discussion of the suitability and necessarily the personalities of those considered as possible guardians. 17.1 KB
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- Formal Opinion E-75-18: Conflict of interest: Representation of indigent co-defendants by Legal Aid Society - State Bar of Wisconsin Ethics Committee: The Legal Services Center (hereinafter, "the Center") is obligated by contract with the County to provide criminal and juvenile representation for indigent defendants in county courts. Under that contract, the Center agrees to "Furnish staff attorneys who will directly accept all criminal-juvenile court appointments offered by the Judges of the County." The Board of Directors has directed that, when staff attorneys represent co-defendants charged with the same crime and having possibly conflicting interests, the attorneys are to file appropriate motions to have private counsel appointed for one or more of the defendants. Such motions had been filed occasionally before the Board's directive, and have always been denied. 15.6 KB
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- Formal Opinion E-75-20: Legal services to indigents program of County Bar Association: Mandatory participation - State Bar of Wisconsin Ethics Committee: A county bar association, a voluntary group of attorneys within a county has formulated a proposal which calls for all attorneys within a county to render gratuitous legal services to indigent persons upon a rotational basis, within its guidelines set forth in the plan. As a part of the proposal, each member would be assessed a sum of approximately $100-150 for each assigned case which is refused by that attorney. There has been a negative reaction by one or more lawyers who maintain offices within the county. The inquiry is whether enactment and enforcement of such proposal would be ethically proper? 14.8 KB
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- Formal Opinion E-75-3: Attorney named as trustee-executor - State Bar of Wisconsin Ethics Committee: Under the facts presented above, to what extent can Attorney Y comply with Mr. X's wishes? Can s/he draft all of the documents and include her/his firm in these documents as mandatory attorney for both the estate and the trust? Can s/he, additionally, appoint herself/himself co-trustee or appoint a single corporate trustee, but require that the corporate trustee exercise no discretion without the advice and consent of her/his law firm? 10.6 KB
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- Formal Opinion E-75-6: Request by administrator of estate for delivery of tape recording of client from attorney - State Bar of Wisconsin Ethics Committee: An attorney is retained by client to defend the client against a shoplifting charge. The attorney makes a tape recording of the client's discussion of the matter. At trial, the client is found guilty but the case is left open for dismissal upon a finding of 6 months good conduct on the part of the defendant. Shortly thereafter, the client dies. His widow, who is appointed special administrator of his estate, seeks to obtain the tape recording, or a copy of it, for her own personal sentimental reasons. It seems that during her husband's lifetime no other recording was made of his voice; therefore, she wants the only available recording. Incidentally, the tape was played for her once and she knows the contents of it. May the attorney who made the tape recording release it to the widow without violating the Canons of Ethics? 4.79 KB
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- Formal Opinion E-72-2: Attorney-collection agency relationship - State Bar of Wisconsin Ethics Committee: Upon your inquiry of November 18, 1971, addressed to this committee on a considered means of expedition in the handling of commercial collections by which the lawyer engaged in that field would furnish forms either with or without charge to existing clients, as well as upon request to new clients, which forms would contain the attorney’s name and address on all parts, the top part to be kept by the client, the middle portion sent to the attorney with instructions to proceed with legal efforts to collect after the expiration of a certain number of days, and the final or bottom portion to be mailed by the creditor-client to the debtor with notification that unless payment is made the matter will be placed directly in the hands of the lawyer whose name and address as such are made part of the form. 7.84 KB
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