Vol. 77, No. 11, November
Ethics 2000: Understanding Proposed Changes to Professional Conduct
The Wisconsin Supreme Court's Ethics 2000 Committee has petitioned
the court for changes to the Rules of Professional Conduct for
Attorneys; the court has set a public hearing for Feb. 17, 2005. The
State Bar Board of Governors seeks to educate members about the
recommended changes and gather member input before taking a position on
the committee's recommendations. This article summarizes the committee's
by Daniel W. Hildebrand
Hildebrand is a shareholder of DeWitt Ross & Stevens S.C.,
Madison. He is a former president of the Dane County Bar Association and
the State Bar of Wisconsin. He is a member of the ABA Standing Committee
on Ethics and Professional Responsibility and is a member of the ABA
Board of Governors. He also is a member of the American Academy of
Appellate Lawyers and has a substantial appellate practice.
This article describes proposed changes to the Rules of Professional
Conduct for Attorneys, Chapter 20, Supreme Court Rules.1 By way of background, in 1997, the American Bar
Association (ABA) president established the Ethics 2000 Commission to
make a comprehensive study and evaluation of the ABA Model Rules of
Professional Conduct. After the commission made its report, the ABA
adopted most of the commission's recommendations, resulting in
substantial changes to the Model Rules.
These changes were sent to the various states for consideration. In
response, the Wisconsin Supreme Court created the Wisconsin Ethics 2000
Committee (the committee).2 Its objectives,
among other things, were to 1) conduct a comprehensive review of the
Wisconsin Rules of Professional Conduct for Attorneys both on their own
merits and in light of the changes, both proposed and adopted, to the
Model Rules by the ABA Ethics 2000 Commission; 2) recommend changes, if
any, to the existing Wisconsin rules via a petition to the supreme court
for a rules change; and 3) in the interest of providing full and fair
consideration of these important public policy issues, solicit comments
from the bench, the bar, and the public.
On July 29, 2004, the committee filed its petition and a
comprehensive report recommending changes to Wisconsin's version of the
Model Rules.3 In its petition the committee
noted that the great majority of the recommended changes would clarify
rather than change existing duties.
Key proposals for changes are summarized in the committee's petition
to the court.4 This article reiterates that
Rule 1.0 Terminology. This new rule defines certain
terms used throughout the rules. Among its most significant provisions
is the "informed consent" standard. This standard is applied in the
proposed rules to many decisions that clients are responsible for
making, including defining the scope of representation (Rule 1.2),
authorizing disclosure of information relating to the representation of
a client (Rule 1.6(a)), obtaining written waivers of a conflict of
interest (Rule 1.7(b)), entering into a business transaction with a
client (Rule 1.8(a)), and having a client agree that a third party,
including an insurer, pay fees and expenses to the attorney (Rule
1.8(f)). The rules do not currently include "informed consent" as a
standard. The committee also proposes definitions for
"misrepresentation" (to include only intentional misrepresentation) and
"prosecutor" (to include municipal prosecutors and prosecutors in
juvenile court). These terms are not presently defined in the Model
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Email your comments to email@example.com,
or send to State Bar of Wisconsin, P.O. Box 7158, Madison, WI
53707-7158, Attn: Cathleen Dettmann.
For more information on the Ethics 2000 proposal, watch
for additional coverage in the December issue.
Rule 1.5 Fees. Amendments to this rule are pending
before the court by virtue of a petition filed by the court's Fee
Arbitration Study Committee. The Ethics 2000 Committee's proposal, which
differs in some respects from its response to the Fee Arbitration Study
Committee petition, was developed after consulting with the Fee
Arbitration Study Committee and considering comments by lawyers and
others. Of significance is the committee's proposal requiring the scope
of representation, the basis or rate of the fee, and the expenses
charged to the client to be set forth in writing. When the amounts
charged to the client are $1,000 or less, the communication may be oral
or in writing. The committee disagreed with the Fee Arbitration Study
Committee's recommendation that lawyers be required to provide written
estimates of fees.
The committee also proposes revising Rule 1.5(e) to obligate lawyers
in a referral arrangement to assume the same ethical responsibility for
the representation as if they were partners in one firm and to disclose
to the client the share of the fee that each lawyer expects to
Rule 1.6 Confidentiality. The proposal contains the
current rule's distinctive exception to the duty of confidentiality,
which arises in certain cases involving client crimes and frauds. The
proposal adopts the ABA Model Rule exceptions for compliance with a
court order to testify, for disclosures that "comply with other law,"
and for disclosures that the lawyer may need to make to another lawyer
to obtain advice on ethical issues affecting the representation.
Rule 1.8 Conflicts of Interest: Prohibited
Transactions. Among other proposed changes, the committee
recommends deleting the insurance defense exception in Rule 1.8(f) and
requiring that a client give informed consent to the lawyer's fee being
paid by a third party. One of the recurring themes in the proposed rules
is that lawyers should clarify their relationships, and the committee
views this theme as equally important in the insurance defense
Rule 1.10 Imputed Disqualification: General Rule.
The committee proposes that, when a lawyer changes firms, the lawyer's
conflict of interest in a matter will not be imputed to lawyers at the
new firm if 1) the conflict arises from legal services that were only
minor and isolated and 2) the personally disqualified lawyer is timely
screened from participation. The committee believes that this limited
screening rule protects important client interests, while responding in
a fair and practical way to the litigation strategy of using
disqualification motions in an abusive manner.6
Rule 1.13 Organization as Client. This substantially
revised rule guides the lawyer for an organization when an officer or
employee of that organization violates a legal obligation of the
organization by engaging in an action, intending to act, or refusing to
act and thereby is likely to substantially injure the organization.
Rule 1.18 Duties to Prospective Clients. The
committee recommends that the court adopt this new rule, which has no
counterpart in chapter 20. This rule provides needed guidance to lawyers
concerning restrictions on using information obtained from a prospective
Rule 2.2 Intermediary and Rule 2.4 Lawyer Serving as
Third-party Neutral. The committee recommends that Rule 2.2 be
deleted in its entirety from the revised Model Rules, because the issues
this rule addresses are better dealt with in other rules, including
conflicts of interest rules and new Rule 2.4. New Rule 2.4 defines the
role and obligations of third-party neutrals and requires third-party
neutrals to advise unrepresented parties that the neutral is not
Rule 3.8 Special Responsibilities of a Prosecutor.
The committee proposes new provisions, not contained in the Model Rules,
to clarify what types of communications are permissible between a
prosecutor and an unrepresented defendant. The committee believes that a
prosecutor should be able to negotiate a plea with an unrepresented
defendant, but the prosecutor should not provide other legal advice or
assistance to the defendant during the negotiation process.
Rule 3.10 Threatening Criminal Prosecution. The
committee recommends deleting from the current rules this provision,
which has no counterpart in the ABA Model Rules. The committee found
that standards for establishing a violation of the rule are high, and
the facts of individual cases often will contain sufficient ambiguity to
make the rule inapplicable.7 To the extent
that threats to present criminal charges amount to extortion, such
conduct can be prosecuted under appropriate provisions in Rule 8.4.
Rule 4.1 Truthfulness in Statements to Others. The
committee proposes a new paragraph, not found in the ABA Model Rules,
recognizing that prosecutors may advise and supervise other persons with
respect to lawful undercover investigations that involve deception. The
failure of the rules to address this issue leaves such conduct largely
unregulated because the parameters of ethical conduct are unstated.
Moreover, the committee believes that it is wise to encourage that
prosecutors supervise investigations so that the rights of suspects can
be better protected.
Rule 4.5 Guardians ad Litem. The committee proposes
this new rule, which has no counterpart in the ABA Model Rules, so that
guardians ad litem understand that their conduct is governed by the
rules, even though their responsibilities may differ in some respects
from those in the usual representation.
Rule 6.1 Pro Bono Publico Service. The committee
proposes that lawyers be required to file a report annually concerning
their pro bono activities. This requirement is recommended to emphasize
the pro bono responsibilities of lawyers and to collect information
about pro bono services and needs. The ABA Model Rule does not contain a
Rule 6.5 Nonprofit and Court-annexed Limited Legal Services
Programs. This new rule, which is part of the ABA Model Rules,
provides limited protection against disqualifying conflicts of interest
for certain legal advice hotlines and advice-only clinics that fit
within the rule's parameters.
Rule 7.6 Political Contributions to Obtain Government Legal
Engagements or Appointments by Judges. This new Model Rule is
designed to prohibit "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 has proposed two
new paragraphs that are not included in the ABA Model Rules. Paragraph
(h) restates the lawyer's duty to cooperate in the investigation of a
grievance, in the belief that placing this duty in chapter 20 will
provide better notice to lawyers. Paragraph (i) makes it misconduct for
a lawyer to harass a person, in connection with the lawyer's
professional activities, on the basis of sex, race, age, creed,
religion, color, national origin, disability, sexual preference, or
marital status. This provision is intended to reinforce the strong
commitment to equal justice under law.
Readers of this article are encouraged to review the entire petition
and report, which are available on the State Bar's Web site,
www.wisbar.org/ethop/2000/. The Wisconsin Supreme Court has scheduled a
public hearing on the committee's petition for Feb. 17, 2005, at 9:30
a.m., in the Supreme Court Room in the State Capitol.
1The Model Rules of Professional
Conduct, with some modifications, were adopted by the Wisconsin Supreme
Court effective Jan. 1, 1988, replacing the Code of Professional
Responsibility. See Daniel W. Hildebrand, Introduction,
Model Rules of Professional Conduct, 60 Wis. B. Bull. 19
(August 1997); Order, In re Amendment of Supreme Court Rules,
Chapter 20, 139 Wis. 2d xiii (1987). Citation of the Wisconsin
version of the Rules is SCR 20:____. For example, the current Wisconsin
version of Model Rule 1.1 can be found at SCR 20:1.1.
2Wisconsin Ethics 2000 Committee
members are: lawyers Daniel W. Hildebrand (chair), Thomas J. Basting Sr.
(vice chair), Prof. Michael K. McChrystal (reporter), Prof. Kenneth M.
Streit (associate reporter), Ralph Cagle, Ben Kempinen, Earl H. Munson,
Barbara A. Neider, Maura Whelan, Nathaniel Cade Jr., Hannah Dugan, Mel
Scott Johnson, and Dean R. Dietrich; and nonlawyers Rosemary Hinkfuss,
Casey L. Perry, Marcia Mentkowski, Dawn L. Miller, Mary O. Pieschek, and
3The Wisconsin Ethics 2000
Committee petition and report are available on the State Bar's Web site,
www.wisbar.org. The petition recites the text of all of the proposed
4This article's discussion of key
proposals corresponds to the "Key Proposals" outlined in the committee's
5See Marten Transport,
Ltd. v. Hartford Speciality Co., 194 Wis. 2d 1, 533 N.W.2d 452
6See generally Nelson
v. Green Builders, Inc., 823 F. Supp. 1439 (E.D. Wis. 1993).
7See generally In re
Disciplinary Proceedings Against Coe, 2003 WI 117, 265 Wis. 2d 27,
665 N.W.2d 849.