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.

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