Vol. 81, No. 3, March
Part 1: A Dialog on the New Rules of Professional Conduct
In Part 1 of this two-part conversation, Dean Dietrich and Ralph Cagle
discuss some of the changes to Chapter 20, the Rules of Professional
Conduct for Wisconsin attorneys, including the impact of informed
consent and written agreements on the practice of law and lawyers'
potential exposure to malpractice claims.
by Ralph M. Cagle & Dean
On July 1, 2007, the Wisconsin Supreme Court adopted many changes to
20, the Rules of Professional Conduct for Wisconsin attorneys. Dean
chair of the State Bar Professional Ethics Committee, and Ralph Cagle, a
Law School professor and former reporter to the committee, frequently
the changes and how they affect lawyers. Here is Part 1 of a two-part
2 will continue in the April Wisconsin
Dietrich: We've been discussing the change in the requirement
"consent after consultation" to "informed consent"
when asking for a client's
decision concerning representation. How do you think this new standard
consent will affect lawyers?
Cagle: It could be quite significant. Here's what I think has
new rules up the ante on the information a lawyer must convey to a
validly obtain the client's consent to a large number of actions,
including waiver of
a conflict of interest, revealing of confidential information, certain
arrangements, joint enterprises, and probably most significantly,
any settlement or plea agreement.
Ralph M. Cagle, U.W. 1974, is a professor at the U.W. Law
The old standard of consent after
consultation is replaced by informed
consent. Now, over time, informed consent has taken on particular
meaning in other areas of activity, such as consent to medical treatment
procedures. The comments to the rules make clear that informed consent
requires a lawyer
to make a disclosure that includes: 1) the facts and circumstances
to the situation requiring the client's consent; 2) any explanation
reasonably necessary to inform the client of the material advantages and
of the proposed course of conduct; and 3) a discussion of the client's
and alternatives. The comments also stated that the disclosure
clients who are not experienced in legal matters is greater. Most
experienced in legal matters.
I am not saying this is bad or the wrong standard for
with clients. In fact, I think it is the best practice. It certainly is
teach my students to try to do. My concern is with making the best
minimum standard for which a lawyer is subject to being disciplined.
Dietrich: Are you predicting that this new standard will
result in more
lawyers being disciplined ?
Cagle: Don't know yet. Time will tell. But, I know that
in communication are one of the most frequent sources of disciplinary
complaints and imposed sanctions. Inadequate communication claims can be
defend in part because they often are "he said-she said"
disputes where the
client and the lawyer have very different recollections of what was or
communicated. We are just going to have to see how the Office of Lawyer
Regulation (OLR) applies this new standard. It can be a common sense and
application or it can be enforced with biblical literalism. The latter
problematic in my view.
Dietrich: Will this affect lawyers' malpractice exposure?
Cagle: Well, malpractice is a departure from the standard of
by similarly situated lawyers. The new rule does not automatically
way lawyers secure their clients' consent to undertake certain actions.
small change was made to the preamble to the rules that makes it clear,
clearer depending on your viewpoint, that a violation of the rules can
be evidence of
a failure to meet the applicable standard of conduct. I suspect that we
see some divided opinions about what that all means in this context.
time, changes to the Rules of Professional Conduct can change how
certain things, and sometimes what once was a best practice becomes the
of doing something.
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is
chair of the State Bar Professional Ethics Committee.
Dietrich: The changes to SCR 20:1.5 require a Wisconsin lawyer
to send a
written communication to a client about the scope of representation,
costs related to the representation. Does this new rule make sense?
Cagle: I think on balance it's a beneficial change for clients
Too many grievances, lawsuits, fee disputes, and other misfortunes arise
of misunderstandings or mismatched expectations at the outset of the
relationship. Having the basis of the fee and the scope of the retainer
clarified by a
writing should mitigate many of those problems. A writing forces us to
disciplined and deliberate in addressing these issues. Clients gain a
transparent lawyer-client relationship and maybe a little more control
over the form
of that relationship. For lawyers, I think this change should reduce the
incidence of fee disputes, grievances, and malpractice claims.
Dietrich: But won't lawyers now be subject to discipline just
fee arrangements are not in writing?
Cagle: I doubt we will see public discipline being imposed
just for not
having a writing if the proof is that the fee arrangement was
and was understood by the client. The absence of a writing in that case
be seen as a bit of a technical violation. That has been my experience
the OLR generally has enforced the writing requirement of conflict of
waivers. But, the prevailing practice and the requirement is a writing.
strongly urge lawyers to do that.
It is important to remember that the only writing required is a
There is no requirement of a written fee agreement, though many lawyers
written fee agreements are a good practice. The State Bar of Wisconsin
form notices online that lawyers can look to in creating a notice that
with the rules. From the front page on WisBar.org, just click on the
"Rules of Professional Conduct" to access the sample forms.
Dietrich: There have been a lot of seminars about the rule
there one particular rule change that lawyers may not be aware of but
Cagle: Picking one is a hard assignment. Beyond informed
consent, which we
have talked about, I think lawyers certainly should be aware of the new
of misrepresentation that the OLR proposed to the court and the
adopted. Misrepresentation is now defined as "communication of an
knowingly or with reckless disregard, whether by statement or omission,
if accepted would lead another to believe a condition exists that does
It seems to say that I can make a misrepresentation even though
know what I said was untrue and even if I didn't say anything in the
someone else misunderstanding something. Lawyers recognize and honor
their duty to
be honest and truthful in what they represent to others, but they also
duties of confidentiality and zealous representation of their clients,
and they are
not mind readers. I'm not sure I have a very clear idea what that
means in a lot of scenarios.
Dietrich: In what settings can this arise?
Cagle: Misrepresentation, along with dishonesty, fraud, and
prohibited by Rule 8.4(c). The rule applies to statements or omissions
court; in any pretrial setting; in representing clients outside of
court, such as
negotiating the sale of a business; and in activities where lawyers are
representing someone, such as in a lawyer's private business
public reporting such as tax reporting, and in private behavior. It is
those very few rules that can subject lawyers to professional discipline
behavior that occurs outside their professional activities, so it adds
anxiety about this expansive definition.
Dietrich: These rule changes give us a lot to consider.
Cagle: Yes. We'll continue our conversation next month.
The Dialog Continues in April
In Part 2 of "A Dialog on the Rules of Professional Conduct for
Attorneys," the authors discuss how breaching the rules may affect
malpractice claims, significant changes to the trust account rules,
to prospective clients, client confidentiality and conflict issues, and
the rules affect cross-border practice.