Inside Track: Ethical Dilemmas: Duty to Report Misconduct? Yes. Tell Opposing Counsel of Error in Defense Strategy? No.:

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  • Ethical Dilemmas: Duty to Report Misconduct? Yes. Tell Opposing Counsel of Error in Defense Strategy? No.

    Ethical dilemmas affect every lawyer's practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by State Bar’s Ethics Counsel org tpierce wisbar Timothy Pierce, provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.

    Timothy J. Pierce

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    Question

    You are approached by a man who wants to sue a couple who run a small business. The man is claiming that he has been injured on the premises of the business and has been representing himself for some time and has now come to you because he has been offered a settlement and wants to be represented so he isn’t shortchanged.

    Tim PierceTim Pierce is ethics counsel with the State Bar of Wisconsin. He can be reached at org tpierce wisbar wisbar tpierce org, or by phone at (608) 250-6168.

    You agree to represent the man and contact opposing counsel, who turns out to be very hard to reach.

    When you talk with opposing counsel, he clearly seems distracted, hostile, and just plain weird. You get a little more information about the case, and it’s clear to you that the statute of limitations has run out and opposing counsel seems unaware. You also hear from a friend that the rumor is that opposing counsel has a serious problem with drugs and that he is having a hard time keeping it together. What do you do?

    Answer

    Raising a statute of limitation is an affirmative defense, and the lawyer is not obligated to do this for opposing counsel. However, the lawyer may have a duty to report opposing counsel’s misconduct.

    References: SCR 20:4.1, SCR 20:8.3; ABA Formal Opinion 94-387