June 17, 2020 – What do family practice lawyers need to know when a member of their firm is a family court commissioner?
I am a newer lawyer who just took a job at a private law firm. One of the partners at the firm is a family court commissioner in the county where we practice.
I would like to develop a family law practice, and I understand it would be a problem for me to represent someone before my partner, but are there other things to watch out for?
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The Rules of Professional Conduct say nothing directly about the responsibilities of a lawyer appearing before a judicial official with whom the lawyer has connections, either personal or professional.
In such situations, it is the judicial official who is directly regulated through the Code of Judicial Conduct. But the answer here lies in Wisconsin statutes, specifically Wis. Stat. section 767.16, which states:
A circuit court commissioner assisting in matters affecting the family or a member of the commissioner's law firm may not appear in any action affecting the family in any court held in the county in which the circuit court commissioner is acting. If a circuit court commissioner or a member of the commissioner's law firm is interested in an action affecting the family and no other circuit court commissioner is available, the presiding judge shall appoint an attorney to act as circuit court commissioner in that action. The appointed attorney shall take and file the oath and receive the compensation provided by law.
One reading of this statute would be that it prohibits the court commissioner from acting when another member of the court commissioners firm is representing a party in the matter.
There appear to be no cases interpreting this statute, but Wisconsin Attorney General’s Opinion OAG 14-78 interpreted a substantively similar prior version of the statute.1 The opinion states, in part:
You requested my opinion on three questions regarding the extent to which the professional and business ties between a family court commissioner and his law partner or partners limit the ability of any such partners to participate in actions affecting marriage. The questions, which specifically concern the restrictions placed on them pursuant to sec. 247.16, Stats., are as follows: first, whether a law partner of the family court commissioner can serve as counsel in a divorce action when the family court commissioner is himself an active participant in the court proceeding; second, whether a partner of the family court commissioner can serve as counsel in a divorce action when an assistant family court commissioner and not the family court commissioner takes part in the hearing; third, whether a waiver signed by the immediate parties to the action, i.e., the two spouses and the guardian ad litem, if any, can operate to validate proceedings which technically violate sec. 247.16.
In my opinion, under sec. 247.16, Stats., a law partner of the family court commissioner is prohibited from serving as counsel in a divorce action in any court held in the county in which the family court commissioner holds office, regardless of whether it is the family court commissioner himself or an assistant who actually participates in the court proceeding. Further, it is my opinion that the waiver suggested in your third question could not under any circumstances operate to validate proceedings which violate sec. 247.16, and allow participation as counsel by a law partner of the family court commissioner.
Thus, the opinion interprets the statute as completely banning family law practice by members of the firm, regardless of whether the family court commissioner is involved in the matter.
Tim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by org tpierce wisbar email or through the Ethics Hotline at (608) 229-2017 or (800) 254-9154.
While the opinion interprets the predecessor statute as banning family law practice by any member of the firm in the county, it explicitly states that family law practice is not prohibited in other counties.
While opinions of the attorney general are not binding, their persuasive effect is important because of SCR 20:8.4(f), which states that it is misconduct to “violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers.”
Therefore, if the Office of Lawyer Regulation or a court were to interpret the statute relying on the AG opinion, it would be misconduct for a lawyer in the family court commissioner’s firm to appear in a family law matter in the county.
This is an example of lawyers being regulated by law outside the rules of professional conduct. For more information, see previous Ethical Dilemmas in InsideTrack addressing examples of discipline for violating standards set forth in statutes, including:
In Case You Missed It: Read Past Ethical Dilemmas
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1 The former Wis. Stat. section 247. 16 states: “Family court commissioner or law partner; when interested; procedure. Neither such family court commissioner nor his partner or partners shall appear in any action affecting marriage in any court held in the county in which he shall be acting, except when authorized to appear by s. 247.14. In case he or his partner shall be in any way interested in such action, the presiding judge shall appoint some reputable attorney to perform the services enjoined upon such family court commissioner and such attorney, so appointed, shall take and file the oath and receive the compensation provided by law.”