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    Dealing Fairly With an Unrepresented Person

    The author looks at issues of fairness and advocacy when lawyers deal with unrepresented people and discusses the related Ethics 2000 Committee recommendations that are pending before the Wisconsin Supreme Court.

    Ben Kempinen

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 78, No. 10, October 2005

    Dealing Fairly With an Unrepresented Person


    The author looks at issues of fairness and advocacy when lawyers deal with unrepresented people and discusses the related Ethics 2000 Committee recommendations that are pending before the Wisconsin Supreme Court.


    Sidebars:

    People negotiatingby Ben Kempinen

    E

    qual justice under law may be the most fundamental maxim of our legal system. It may also represent the aspiration that has proven most difficult to attain, due in large part to the lack of access to legal services for a growing number of people. In criminal matters, notwithstanding a right to counsel grounded in the U.S. and Wisconsin constitutions, many accused persons remain unrepresented because they cannot afford to retain private counsel and do not meet prevailing indigency standards.1 In civil matters, reductions in legal services funding and the gap between available pro bono services and the need for those services make the presence of counsel in many types of cases the exception rather than the rule.2

    The problem of unequal justice has spawned a variety of suggested solutions from bench, bar, and academia, with most focusing on improving access to counsel.3 Not surprisingly, proposals that require individual lawyers to represent persons for no fee or contribute funds to organizations that provide such services have proven the most controversial.4 However, there is another way that individual lawyers have an impact on equal justice: how they treat an unrepresented opponent. While initiatives to increase access to counsel are developed and debated, the system continues to function, with increasing numbers of participants unrepresented by counsel. Treating the unrepresented adversary fairly does not cost anything nor does it require an attorney to accept new and unwanted clients. At the same time, fair treatment can directly contribute to equal justice.

    Fair Treatment of Unrepresented Opponents

    Ben KempinenBen Kempinen, U.W. 1976, is a clinical associate professor at the U.W. Law School. He is a member of the Wisconsin Ethics 2000 Committee. The opinions expressed in this article are those of the author, not of the committee.

    In broad terms, fair treatment of unrepresented opponents would seem to mean not taking unfair advantage of the absence of counsel. But what exactly does it mean to take unfair advantage? From one perspective, vigorous advocacy for a client requires counsel to take advantage - of the facts, of the law and, in many instances, of the lack of skill, experience, or resources of opposing counsel.5 An arguable extension of this notion would require counsel to take advantage of a pro se opponent in the same manner. From another perspective, exploiting the ignorance of an unrepresented opponent is difficult to reconcile with the notion that all lawyers have a duty to support a just system.6

    To be sure, most lawyers are sensitive to these concerns and seek to be fair to an opponent, whether represented or not. But it is not always easy. Suggesting that lawyers have a heightened duty of fairness when faced with a pro se adversary raises a host of issues. Should counsel be sure to clarify his or her interests in the matter? Explain how the process works? Provide advice on the merits? Recommend that the person obtain counsel or assist the person with doing so? And, at what point does fairness to an unrepresented opponent compromise the lawyer's duty to the lawyer's client?

    If it is true that we may never achieve the ideal of adequate legal assistance for each person, it may be that striving for fairness when only one party is represented is a more realistic and important objective. Interestingly, this aspect of the equal justice puzzle has received much less attention than strategies to increase access to counsel, even though attention to the problem could go far to guide lawyers and protect those who must navigate the legal system without counsel.7

    Ethics rule treatment of the unrepresented person was among the issues considered by the Wisconsin Ethics 2000 Committee. Four of the proposed rules address this particular concern.8

    It would be presumptuous and premature to assume the supreme court will adopt these proposals. Nonetheless, there is value in considering the problems they address and how the proposals balance the competing interests. All practicing lawyers have confronted or will confront an unrepresented person. Reflecting on the dynamics of such encounters can encourage lawyers to engage in practices that are fair to the opponent without compromising the client's legitimate interests. This discussion will note typical situations involving unrepresented persons and compare the guidance provided by the existing and proposed ethics rules.

    Common Situations

    For most lay persons involvement in a legal dispute is a passageway into a strange and unfamiliar world. The stakes may be high: a criminal conviction, termination of employment, loss of custody of one's children, or a substantial financial burden. To nonlawyers, the language of the law is foreign, the procedures unknown, and the substantive principles beyond their ken. When represented, the layperson can rely on counsel as a guide through the procedural maze, as a protector to caution against disclosing confidential information, and as a counselor to help the layperson make informed choices among available alternative courses of action.

    Absent counsel, the layperson must either proceed in ignorance or seek answers to questions from others, including clerks, judges and, more often than not, from opposing counsel. When the proceeding is in court, it is at least possible that the judge or court personnel could provide direction. This is not possible when counsel has contact with the unrepresented person away from the courthouse, where most interactions occur. In these settings the unrepresented person often looks to opposing counsel for guidance. The following are prototypical situations:

    • A family law practitioner is retained by a woman seeking to divorce her husband. The husband is unrepresented. After the action has been filed, the husband phones the wife's lawyer and asks if and how he must respond to the petition. It is clear the husband wants to talk about the merits, and he discloses information that, unknown to him, could be used to his detriment.
    • The district attorney has charged a person with several minor criminal offenses. At the scheduled pretrial conference the defendant appears without counsel, explaining that he was found ineligible for a public defender but cannot afford a private lawyer. He says he has never been in trouble before and asks the DA what will happen to him. The defendant begins to explain his version of what happened, providing information that is probative of guilt.
    • In-house counsel for a large company is investigating possible employee misconduct. Counsel suspects one individual in particular and wants to interview her. The attorney knows that the employee will be terminated if the suspicions are borne out. In contrast, the employee assumes the interview will be confidential; after all, she and the attorney know each other and work for the same company. The employee is summoned to the attorney's office. The attorney knows that if the employee realizes the true nature of the meeting the employee is less likely to be forthcoming.
    • Appellate counsel for a convicted offender contacts a witness who is said to have recanted her trial testimony. If the witness appears reluctant to speak with counsel, may the lawyer encourage her to cooperate by suggesting the witness can be subpoenaed to court regardless of her wishes? And, how should counsel respond if the witness asks if she could get in trouble if she changes her testimony?

    These scenarios demonstrate several common threads when a lawyer confronts an unrepresented person:

    1. the unrepresented person often does not clearly understand that the attorney's role is or may be adverse to the person's own interests;
    2. the unrepresented person is unsure what to do and asks the attorney for help;
    3. the unrepresented person is eager to explain her side of the story, often disclosing confidential information that could work to her detriment;
    4. the attorney is positioned to take advantage of the unrepresented person in ways that would not be possible if the person were represented;
    5. helping the unrepresented person could frustrate legitimate interests of the lawyer's client; and
    6. contacts between the lawyer and the unrepresented person most often occur outside of the courthouse.
    Current Ethics Rule Treatment of the Unrepresented Person

    Existing ethics rules presuppose a system in which all parties are represented. Duties to adversaries are limited because it is assumed that opposing lawyers have the responsibility and ability to effectively research, prepare, and present their clients' cases. Of the more than 50 ethics rules in the current Chapter 20 only three expressly address contact with the unrepresented person. These three rules include basic assumptions about the allocation of responsibilities between represented parties in an adversary setting that often are inapplicable in contacts with unrepresented people. The rules address these interactions in varied ways.

    Rule 20:4.3. This rule applies to all lawyer contacts with unrepresented persons regardless of the setting or practice area. It is identical to the original ABA Model Rule 4.3 and provides:

    "Rule 20:4.3. Dealing with Unrepresented Person. In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding."

    The rule prohibits deception about the lawyer's interests but does not automatically require that the interests be explained. Instead, a duty to clarify is triggered when circumstances suggest confusion over the lawyer's role. The duty to clarify is clear when the unrepresented person makes a direct inquiry to the lawyer. Less clear are the lawyer's responsibilities in ambiguous situations, where confusion may exist but is not expressly raised.

    SCR 20:4.3 permits giving information and does not prohibit advising an unrepresented opponent, notwithstanding the adversity of interests.9 The lack of a uniform duty to clarify the lawyer's role combined with the lack of control over giving advice allows an attorney to exploit an unrepresented person's ignorance without fear of discipline. In its current form the text of SCR 20:4.3 provides minimal protection to the unrepresented person.

    Rule 20:1.13. This provision concerns lawyers who represent organizations. It first appeared in the 1983 ABA Model Rules. Wisconsin adopted the ABA version in 1987 as part of the state's last ethics rules revision. Subsection (d) states:

    "In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing."

    The duty to clarify the lawyer's interest under SCR 20:1.13(d), unlike the similar duty under SCR 20:4.3, arises when the attorney realizes the organization's interests conflict with those of the constituent, regardless of whether the constituent is confused or not. The duty to clarify may serve the lawyer's interests as well as those of the unrepresented constituent.10

    Like SCR 20:4.3, SCR 20:1.13 allows the lawyer to give information to and even advise the unrepresented constituent notwithstanding the existence of adverse interests. The risk of overreaching in this situation may be less likely due both to the expanded duty to clarify and the likelihood that members of an organization are more likely than the average layperson to have a sophisticated knowledge of legal matters.

    Rule 20:3.8. This rule also addresses contact with the unrepresented person. Like SCR 20:1.13(d), SCR 20:3.8 has a specific focus - here the prosecutor faced with a pro se defendant in a criminal case. The prosecutor's responsibilities are described in subsections (b) and (c). Subsection (b) provides:

    "The prosecutor in a criminal case shall ...

    "(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; ..."

    The purpose of subsection (b) is self-evident - to make sure the unrepresented criminal defendant is aware of the right to counsel. The rule implements this policy by imposing three separate requirements. First, the prosecutor must "make reasonable efforts to assure that the accused has been advised of the right to counsel." Second, the prosecutor must "make reasonable efforts to assure that the accused has been advised of ... the procedures for obtaining counsel." Third, the prosecutor must "make reasonable efforts to assure that the accused ... has been given [a] reasonable opportunity to obtain counsel." Presumably, this third element requires that scheduling be sufficiently flexible to permit the accused to contact and obtain counsel before important case decisions need be made. Interestingly, the prosecutor does not necessarily have to personally inform the unrepresented defendant of the right to counsel and related protocol; rather the prosecutor is responsible for making sure that someone has. Perhaps in the courtroom setting it is appropriate to defer to the judge, whereas outside of court the prosecutor should personally provide this information. SCR 20:4.3 would also permit the prosecutor to recommend that the unrepresented defendant seek counsel.

    Subsection (c) continues:

    "[T]he prosecutor in a criminal case shall ...

    "(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing ..."

    On a superficial level SCR 20:3.8(c) makes sense: it is unseemly to exploit a defendant's ignorance to get the defendant to waive procedural rights. However, the manner in which the rule purports to protect the pro se defendant is at best confusing and at worst more harmful than beneficial.

    First, the only procedural right explicitly mentioned is the preliminary hearing. SCR 3.8(c) makes no mention of the right to counsel, the right to a jury trial, the right against self-incrimination, or the right to confront one's accusers, all constitutionally mandated protections of greater significance than a statutory preliminary hearing.11 A literal interpretation of the rule's text suggests that only seeking waivers of insignificant protections is prohibited; inducing the unrepresented person to unwittingly forfeit constitutional protections is not. A more sensible interpretation is that mention of the preliminary hearing is illustrative rather than exclusive and that the rule protects other, more important trial-related protections as well as the preliminary hearing.

    However, if the rule is read to prohibit seeking waivers of any procedural right - however important - the rule appears to flatly prohibit plea negotiations with unrepresented defendants. By definition, seeking a guilty plea is seeking to obtain waivers of important rights. Consequently, an unstrained reading of SCR 20:3.8(c) suggests that any plea negotiation with an unrepresented party is unethical, however fairly conducted. Nor does the rule's text except cases in which the defendant has chosen self-representation and has validly waived counsel before a judge.12 Ironically, in an effort to protect the pro se defendant from unfair negotiation practices, the rule seems to exclude pro se defendants altogether from the potential benefits of the negotiation process as well. If subsection (c) means what it says, it is violated whenever prosecutors negotiate with pro se defendants, regardless of how fair and principled their discussions are.13

    SCR 20:3.8 imposes no independent duty to clarify the prosecutor's interest in the case, although SCR 20:4.3 would require clarification of interest if confusion is apparent. Like Rules 20:1.13(d) and 20:4.3, Rule 20:3.8 permits giving information to and does not expressly prohibit advising the pro se defendant, although subsection (c) suggests the prosecutor could not advise the person to plead guilty because such a course of action would result in the waiver of procedural rights.

    Applying the existing rules to the four scenarios described provides a glimpse of the Wisconsin lawyer's current options.

    In the first situation, a family law matter, the lawyer's choices are controlled by SCR 20:4.3. Absent any clear indication that the husband is confused, counsel would not have to clarify that he or she represents only the wife's interests. Counsel would be free to inform the husband about the process but would not be required to do so. Counsel could even, without violating the rule, encourage a course of action that might be inconsistent with the husband's interests. Counsel need not warn the husband of the risks of speaking about the merits nor would counsel be prohibited from using information gained to further his or her client's interests. On the other hand, if motivated by sympathy or fairness, counsel could seek to help the husband, although, at some point, such efforts might conflict with counsel's responsibilities to the client, the wife.14

    The second example, involving a prosecutor in a criminal case, is controlled by SCR 20:3.8 and SCR 20:4.3. By his own statement the pro se defendant has shown awareness of the right to counsel; thus, this information need not be repeated. However, the prosecutor should tell the defendant of the right to petition the judge for the appointment of counsel at county expense because it is not clear the defendant is aware of this option.15 And, if the defendant wishes to seek court appointment of counsel, the prosecutor must give the defendant a reasonable opportunity to obtain counsel.

    As in the first example, the prosecutor is not automatically required to explain his or her interest in the case nor must the prosecutor warn the defendant that disclosures could be used against the defendant. And, even if dismissal or reduction of charges is the most common response to such a case, the safest approach for prosecutors would be to avoid discussion of plea negotiations because it could be viewed as "seek[ing]" the waiver of "important pretrial rights" in violation of subsection (c).

    In the third example, in-house counsel would be guided by SCR 20:1.13(d) and SCR 20:4.3. SCR 20:1.13(d) would require that the lawyer clarify his or her interest given his or her knowledge that the constituent's interests conflict with those of the organization. At the same time, in-house counsel could give information or advice and "spin" the clarification to encourage the constituent to cooperate even if the constituent is not required to do so.

    Each of the first three examples involves clear adversity of interests. The first two involve matters in litigation and the third involves adversity outside of litigation. The fourth is different, involving a witness rather than a party, albeit a witness with interests potentially adverse to the attorney's client. The witness's recantation of her trial testimony could help the client but could expose the witness to prosecution for perjury. SCR 20:4.3, referring to "person[s]," would still apply. Absent apparent confusion the lawyer need not explain his or her role and could encourage the witness to cooperate notwithstanding the potential risks. At the same time, advice of a more balanced nature would be permissible but could undercut counsel's duty to the client if the advice resulted in the loss of favorable testimony.

    It seems evident that our current rules are not as helpful as they could be, either to lawyers or to unrepresented persons. Attorneys sympathetic to the plight of the unrepresented person risk doing a disservice to their own clients' interests or even being forced to withdraw if found to have unintentionally created a de facto attorney-client relationship by helping the pro se adversary. Nor do the rules effectively protect against overreaching by the occasional unscrupulous attorney. Against this background, the Wisconsin Ethics 2000 Committee considered possible modifications to the rules.

    Proposed Changes to the Ethics Rules

    The proposed Chapter 20 revisions concerning unrepresented persons reflect a conscientious effort to balance the interests of represented clients with those of unrepresented persons and to craft a policy grounded in both principle and pragmatism. Although there are slight distinctions in language and coverage among the four rules that address contact with unrepresented people, all reflect three basic assumptions:

    1) lawyers should always explain their interests when faced with an unrepresented person;

    2) lawyers should be permitted to provide general legal information to an unrepresented person; but

    3) partisan lawyers should never, regardless of their motivation, give legal advice to an unrepresented person with actual or potential conflicting interests other than to suggest that the person obtain a lawyer.

    Requiring lawyers to clarify their role is central to a system committed to fairness to the unrepresented person.16 Such notice can alert the person to the risks of seeking advice from opposing counsel without limiting any legitimate advocacy interest of the lawyer. It also would reduce the likelihood of unwitting disclosures.

    At the same time, allowing but not requiring the attorney to provide general information acknowledges the reality that the pro se party is in need of help and often looks first to opposing counsel to provide it. Drawing the line at giving advice represents an effort to accommodate the realities of practice while reducing the risks inherent in a dialogue with opposing counsel. Without question, distinguishing information from advice can be difficult. However, if lawyers can adhere to the general principle that they may explain the process and alternative choices but should not, directly or indirectly, seek to influence what choice the unrepresented person makes, the distinction is one worth making. Without doubt, a prohibition against giving advice may require a change in practice for those lawyers accustomed to trying to help the unrepresented person. However, such a rule has value that outweighs any short-term inconveniences. First, it would reduce the risk that sympathetic lawyers would be forced from a case due to the conflict caused by being "too helpful" and, as a consequence, fail to vigorously serve their own clients' interests. Second, it could discourage the unprincipled lawyer from exploiting the lack of counsel under the pretense of giving advice. And, perhaps most importantly, it would encourage looking elsewhere than to a lawyer with partisan interests to provide the guidance pro se litigants need and deserve.

    Changes to Rule 20:4.3. Current SCR 20:4.3 does not require counsel to always clarify his or her role nor does it prohibit advising an unrepresented adversary. The wisdom of the rule was a topic of debate among the ABA Ethics 2000 Commission members. The dialogue culminated in modification of the rule, including:

    "The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client."

    The Reporter's Explanation of Changes noted "[t]he reason for the initial decision to delete the Model Code prohibition [against advising unrepresented adversaries] was the difficulty of determining what constitutes impermissible advice-giving. ... Although the line may be difficult to draw, it is important to discourage lawyers from overreaching in their negotiations with unrepresented persons." The commentary to ABA Rule 4.3 was modified as well. As explained by the Commission's reporter:

    "The Commission is proposing three changes in this paragraph. First, a sentence has been added to indicate that, in order to avoid misunderstandings, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. The second is the deletion of the general statement on advicengiving, in recognition that a similar statement now appears in the text. Finally, a crossnreference to Rule 1.13(d) has been added."

    The Wisconsin Ethics 2000 Committee proposal incorporates the recent ABA changes and, in addition, would require clarification of the lawyer's interest in all cases involving an unrepresented person rather than only in those cases in which confusion is apparent. Thus the duty to clarify would go beyond what the current ABA rules require. Sharing information would be permissible, but advice other than to seek counsel would not.

    Rule 20:1.13 - Organization as Client. The ABA adopted several changes to Rule 1.13 in its recent rules revision. Subsection (d), requiring clarification of the lawyer's interest when adverse to that of a constituent, was renumbered as subsection (f) but was otherwise unchanged. The Wisconsin committee recommended adopting the ABA changes in the interest of uniformity. Given the applicability of proposed Rule 20:4.3 to all attorneys, the Wisconsin draft would require the organization lawyer to clarify the lawyer's interest in all cases and would prohibit giving legal advice to an unrepresented constituent with adverse interests, other than advice to obtain his or her own attorney.

    New Rule 20:2.4. Prior ethics codes did not address the lawyer acting as a third party neutral. SCR 20:4.3 would not apply to lawyers in this role because that rule's text limits its application to actions "on behalf of a client." In 2002 the ABA added Rule 2.4 to fill this gap in coverage. Subsection (b) of the ABA rule provides:

    "[A] lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client."

    The Wisconsin Ethics 2000 Committee recommended adopting ABA Rule 2.4. Its purpose and requirements complement the other proposals that seek to minimize the risk of confusion and unfairness to the unrepresented.

    Changes to Rule 20:3.8. The most sweeping proposed rule changes concerning contact with unrepresented opponents can be found in proposed Rule 20:3.8. First, the committee has recommended expanding the definition of "prosecutor" to include "a government attorney or special prosecutor (i) in a criminal case or delinquency action or (ii) acting in connection with the protection of a child or (iii) acting as a municipal prosecutor."17 Subsection (b), which addresses the responsibility to inform the accused of the right to counsel, would be relettered as subsection (c) but otherwise be unchanged. Current subsection (c) would be repealed. As proposed, the new subsections (b) through (d) would provide:

    "(b) When communicating with an unrepresented person, a prosecutor shall inform the person of his or her role and interest in the matter.

    "(c) When communicating after the commencement of litigation with an unrepresented person who has a constitutional or statutory right to counsel, the prosecutor shall inform the person of the right to counsel and the procedures to obtain counsel and shall ensure that the person has been given a reasonable opportunity to obtain counsel.

    "(d) When communicating with an unrepresented person after the commencement of litigation, a prosecutor may discuss the matter, provide information regarding settlement, and negotiate a resolution which may include a waiver of constitutional and statutory rights, but a prosecutor shall not:

    "(1) otherwise provide legal advice to the person, including, but not limited to whether to obtain counsel, whether to accept or reject a settlement offer, whether to waive important procedural rights or how the tribunal is likely to rule in the case, or

    "(2) assist the person in the completion of (i) guilty plea forms (ii) forms for the waiver of a preliminary hearing or (iii) forms for the waiver of a jury trial."

    Although proposed subsections (b) through (d) provide substantially more detail than proposed Rule 20:4.3, the two rules are consistent in their basic approach and in what behaviors are permitted or prohibited. The special rule for prosecutors provides more detail than proposed Rule 20:4.3 given the existence of common recurring issues unique to criminal cases.

    Conclusion

    If adopted, the Wisconsin Ethics 2000 Committee proposed changes would modify the lawyers' options in the scenarios described earlier. In each scenario, the lawyers would have to explain that they represent adverse interests. This would reduce the likelihood that unrepresented opponents would compromise their interests by disclosing harmful information. In all cases, lawyers could provide general information but could not give any legal advice other than to obtain counsel. The expanded breadth and scope of proposed Rule 20:4.3 would ensure a baseline of consistent fair treatment for all cases involving unrepresented persons, supplemented by Rules 20:1.13(d), 20:2.4, and 20:3.8, which apply to specific practice situations.

    Lawyer input during the Ethics 2000 process suggested the proposed changes reflect what many, if not most, lawyers already do. No matter how the supreme court may ultimately respond to the proposed changes, incorporating these principles into Wisconsin's ethics rules would reaffirm the value of a fairness-oriented approach and provide helpful guidance to attorneys struggling with the need to balance their clients' interests while also treating opponents with fairness and dignity.

    Endnotes

    1Under the Wisconsin system, eligibility for a public defender is determined by balancing the defendant's estimated cost of living with the estimated cost of retaining counsel. See Wis. Stat. §§ 49.19(11)(a)1, 977.07(2); Wis. Admin. Code § PD 3.02. The estimated costs of living have not been legislatively revised since 1987. Nor have estimates of the cost of private counsel been recently revised to reflect current costs. As a consequence, a substantial number of defendants are ineligible for public defenders even though the defendants have no realistic possibility of retaining counsel.

    2See Russell Engler, And Justice For All - Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 Ford. L. Rev. 1987, 1987-88 nn.1-3 (1999); Hannah Dugan, Who's Providing Legal Counsel to Wisconsin's Poor, 74 Wis. Law. 10 (May 2001). Statistics from Dane County are consistent with the national trend toward self-representation. A recent report noted that in 2004, 67 percent of divorce litigants appeared without counsel compared with 45 percent in 1995. Similarly, 43 percent of litigants in large claim civil cases appeared pro se in 2004 compared with only 31 percent in 1995. State of the Judiciary Report - Dane County Circuit Court, April 2005.

    3The proposed solutions include increased funding for legal service programs; expanding the responsibilities of clerks, mediators, and judges; and encouraging or requiring greater attorney participation in pro bono programs, to name a few.

    4The deep divisions within the bar regarding the legal profession's responsibility to people who cannot afford legal services are reflected in the opinions of members of the Wisconsin Supreme Court in its consideration of the WisTAF petition to impose a $50 assessment on all active State Bar members. In re Petition of Wis. Trust Account Found. Inc. for Rule Assessing Members of State Bar of Wis. for Annual Sum to Support Organizations that Provide Civil Legal Services to Indigent of this State, Order No. 04-05, March 24, 2005.

    5Ethics rules require competent and diligent pursuit of the client's objectives. SCR 20:1.1-1.3. In providing vigorous representation counsel may not make affirmative misrepresentations but is free to take advantage of an adversary's mistakes or lack of skill or preparation. SCR 20:3.4, 4.1. Although the current rules do not explicitly mention the duty of zealous advocacy, it seems that the combination of rules noted essentially imposes the same responsibility.

    6Paragraph one to the Preamble of the Wisconsin Rules of Professional Conduct for Attorneys provides, "[a] lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice."

    7For example, a recent Westlaw search of law review articles, textbooks, and bar journals for the terms "pro bono" and "unrepresented person" found 1,468 references to "pro bono" compared with 433 references to "unrepresented person" - a ratio of more than three to one.

    8Proposed Rules 20:1.13, 20:2.4, 20:3.8, and 20:4.3 all address attorney contact with an unrepresented person. Rule 20:4.3 broadly applies to all attorneys in all situations whereas the other rules deal with specific situations in which the risk of confusion may exist. The proposals are discussed in greater detail in the last section of this article.

    9The comment to the original ABA Rule 4.3 did provide, "[d]uring the course of a lawyer's representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel." The significance of this language in Wisconsin is unclear given that when the current version of chapter 20 was adopted, the Wisconsin Supreme Court expressly declined to adopt the ABA commentary while ordering that it be "printed for information purposes." Sup. Ct. Order, June 10, 1987.

    10Some courts have held that a de facto attorney-client relationship existed between an organization's lawyer and a constituent in situations in which the latter formed an erroneous but reasonable belief that the lawyer was representing the constituent's interests. See Rosman v. Shapiro, 653 F. Supp. 1441 (S.D.N.Y. 1987); Cook v. Laidlaw, Adams & Peck Inc., 510 N.Y.S. 2d 597 (App. Div. 1987); Kansas Bar Association, Professional Ethics Committee, Op. 91-3 (1991). The existence of an attorney-client relationship in turn would require withdrawal from both cases due to a conflict of interest. See SCR 20:1.7, articulating the general rule of disqualification for a conflict of interest. Clarification avoids this possibility.

    11The preliminary hearing requires a showing of probable cause that a felony occurred as a precondition to requiring a defendant to stand trial. Recent cases have diminished its significance. See State v. Burke, 153 Wis. 2d 445, 451 N.W.2d 739 (1990); State v. Williams, 198 Wis. 2d 479, 544 N.W.2d 400 (1996); State v. Williams, 198 Wis. 2d 516, 544 N.W.2d 406 (1996); State v. Akins, 198 Wis. 2d 495, 544 N.W.2d 392 (1996).

    12The ABA commentary to Rule 3.8 suggests subsection (c) does not apply when a defendant has waived counsel before a judge. However, as noted, the significance of the commentary in Wisconsin is unclear. See supra note 9.

    13The absence of disciplinary actions against prosecutors for negotiating with unrepresented defendants suggests that lawyer regulatory agencies in Wisconsin and elsewhere have not applied Rule 3.8(c) literally. On the other hand, the author is aware of several Wisconsin prosecutors who are reluctant to negotiate with pro se defendants given the rule's text. Clarifying the boundaries of appropriate lawyer conduct in the rules seems more desirable than relying on regulators to interpret a poorly drafted rule in a sensible manner.

    14In contrast to the flexibility provided by application of the Wisconsin rules, Section 3.2 of the Standards of the American Academy of Matrimonial Lawyers provides, "[a]n attorney should not advise an unrepresented party." The drafter's comments to Section 3.2 further state:

    "Once it becomes apparent that another party intends to proceed without a lawyer, the attorney should, at the earliest opportunity, inform the other party in writing as follows:

    1. I am your spouse's lawyer.
    2. I do not and will not represent you.
    3. I will at all times look out for your spouse's interests, not yours.
    4. Any statements I make to you about this case should be taken by you as negotiation or argument on behalf of your spouse and not as advice to you as to your best interest.
    5. I urge you to obtain your own lawyer."

    15Wisconsin circuit courts have inherent authority to appoint counsel at county expense. Carpenter v. County of Dane, 9 Wis. 274 (1859); State v. Sparkman, 27 Wis. 2d 92, 98-99, 133 N.W.2d 776 (1965); State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991). Shrinking public resources make this an unattractive solution.

    16The Ethics 2000 Committee has proposed changes in two related areas to assist lawyers in understanding their responsibilities while protecting affected laypersons. The first is proposed Rule 20:1.18, which articulates duties to prospective clients. The second is Rule 20:6.5, which deals with lawyers who provide short-term limited representation to persons.

    17Under the current proposal the definition of a "prosecutor" would be included in Rule 1.0(j), which provides, "A `prosecutor' includes a government attorney or special prosecutor (i) in a criminal case, delinquency action or proceeding that could result in a deprivation of liberty, or (ii) acting in connection with the protection of a child or (iii) acting as a municipal prosecutor." Some municipal attorneys have objected to being included as "prosecutors" under the proposed revisions to Rule 20:3.8. In the view of one Wisconsin municipal attorney who also served as president of the State Bar of Wisconsin Government Lawyers section, the rule would prevent the common practice of advising "pro se defendants of the way a judge customarily rules in certain common situations..." and would also prohibit giving advice regarding "the possible impact of a settlement or adverse judgment on a pro se defendant's automobile insurance." Such limits on municipal prosecutors were thought to "ignore the reality of this particular court's environment." Letter from Linda U. Burke to Dean Dietrich (member of the Wisconsin Ethics 2000 Committee), May 24, 2004. Proposed Rule 20:4.3 would impose similar limits on all lawyers, including municipal attorneys, regardless of whether they are considered "prosecutors." Consequently, the only practical significance of being included in the definition of "prosecutor" is whether the deception exception - a new provision allowing prosecutors to advise law enforcement regarding deceptive investigative strategies - would apply. See proposed Rule 20:4.1(b).




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