August 2004
Bar seeks member feedback on Ethics 2000 Committee's proposed
amendments to rules of professional conduct
On July 23, Daniel Hildebrand, chair of the Ethics 2000 committee,
presented to the Board of Governors a draft petition and a report
outlining the committee's recommended amendments to Supreme Court Rules
chapter 20, Rules of Professional Conduct for Attorneys. A panel
discussion with representatives from the Legal Assistance,
Professionalism, and Ethics committees followed the presentation.
The Ethics 2000 Committee, comprising 19 lawyer and nonlawyer
members, was created by the Wisconsin Supreme Court to review the
American Bar Association's (ABA) proposed Model Rules changes, which the
ABA House of Delegates considered and adopted in part in 2002.
The State Bar seeks member feedback on the proposed changes, which
the board will consider before voting on the petition. The final
petition and a public hearing date will be published in Wisconsin
Lawyer magazine.
The committee's recommendations include:
Rule 1.5 Fees. The committee recommends
written fee agreements. Fees of $1,000 or less would be exempt.
Rule 1.6 Confidentiality. The proposal
contains the distinctive exception to the duty of confidentiality that
is in the current rule, arising in certain cases involving client crimes
and frauds. The proposal adopts the model rule exceptions for compliance
with a court order to testify and also for disclosures that "comply with
other law." This change provides a safe harbor for lawyers against
disciplinary action.
Rule 1.8 Conflicts of interest: prohibited
transactions. The committee recommends deleting the
insurance defense exception to the requirement that a client must
consent to the lawyer's fee being paid by a third party. Lawyers must
clarify their relationships with their clients.
Rule 1.10 Imputed disqualification: general
rule. The committee proposes that when a lawyer changes
firms, under certain circumstances, the lawyer's conflict of interest in
a matter will not be imputed to lawyers at the new firm. This limited
screening rule is intended to protect important client interests, while
responding in a fair way to the abuse of disqualification motions as a
litigation strategy.
Rule 1.18 Duties to prospective clients.
The committee recommends adopting this new rule, which has no
counterpart in chapter 20.
Rule 2.2 Intermediary, Rule 2.4 Lawyer serving as
third-party neutral. The committee recommends deleting
revised model Rule 2.2 because the issues addressed are better dealt
with in other rules, including conflicts of interest rules and new Rule
2.4.
Rule 3.8 Special responsibilities of a
prosecutor. The committee proposes new provisions
clarifying what communications are permissible between a prosecutor and
an unrepresented defendant. The committee believes a prosecutor should
be able to negotiate a plea with an unrepresented defendant, but the
prosecutor should not provide other legal advice or assistance.
Rule 3.10 Threatening criminal prosecution.
The committee recommends deleting this provision. The standards for
establishing a rule violation are high, and the facts of individual
cases often are ambiguous, thus making the rule inapplicable.
Rule 4.1 Truthfulness in statements to
others. The committee proposes new text, which recognizes
that prosecutors may advise and supervise others regarding lawful
undercover investigations involving deception. Current rules do not
address this issue, leaving such conduct largely unregulated. The change
further protects suspects' rights.
Rule 4.5 Guardians ad litem. This new rule
ensures guardians ad litem understand that their conduct is governed by
the rules, even though their responsibilities may differ from those in
the usual representation.
6.1 Pro Bono: publico service. The
committee proposes that lawyers be required to file a report annually
concerning pro bono activities.
Rule 6.5 Nonprofit and court-annexed limited legal
services programs. This new rule provides limited
protection against disqualifying conflicts of interest for certain legal
advice hotlines and advice-only clinics that qualify.
Rule 7.6 Political contributions to obtain government
legal engagements of appointments by judges. This new rule
prohibits "pay-to-play" practices. The committee did not see this as a
problem in Wisconsin but believes that the express prohibition of such
practices is sound policy.
Rule 8.4 Misconduct. The committee proposes
new text to reinforce the strong commitment to equal justice under the
law. The proposal states that lawyers must cooperate in the
investigation of a grievance, and lawyers must not harass a person on
the basis of sex, race, age, creed, religion, color, national origin,
disability, sexual preference, or marital status in connection with the
lawyer's professional activities.
Read the 141-page report
and the petition. Send your feedback to ethics-feedback@wisbar.org
or mail to Cathleen Huebner, State Bar of Wisconsin, P.O. Box 7158,
Madison, WI 53707-7158.
Inside the Bar