Question

I’ve often heard you talk about the Model Rules and the Wisconsin Supreme Court Rules of Professional Conduct. What is the difference?

Answer

The Model Rules of Professional Conduct are adopted and issued by the American Bar Association (ABA) and are the underpinning for the rules governing lawyers throughout the United States. The ABA issues and amends the Model Rules through action by the ABA Board of Governors. The Model Rules are comprised of the rules themselves and the comments about the rules. The Model Rules are the underpinning for the Wisconsin Rules of Professional Conduct, which are in chapter 20 of the Supreme Court Rules.

The Rules of Professional Conduct govern the conduct of lawyers in the state of Wisconsin. Chapter 20 is issued by the Wisconsin Supreme Court and amended by the court through a petition process. ABA Comments are used to help interpret and understand the text in each specific Wisconsin Supreme Court Rule; however, the court does not adopt the comments.

There are a few differences between the Model Rules and the Wisconsin Supreme Court Rules, some of which are significant. Two examples of differences between the Model Rules and the Wisconsin Supreme Court Rules are discussed below.

One of the most notable differences is in SCR 20:1.6(b), which requires a lawyer to disclose information learned during the course of representation in order to prevent a crime or fraud being committed by the client that could cause substantial harm to the person or financial interest of another. This is a mandatory obligation. The Model Rules contain no such similar rule requiring mandatory disclosure.

The Wisconsin Supreme Court Rules also have a different requirement than do the Model Rules for circumstances in which a lawyer receives a communication that appears to be misdirected to the lawyer from an opposing party or opposing counsel. Under the Wisconsin version of this rule, SCR 20:4.4(c), the lawyer must contact the person sending the misdirected communication and notify the sender that the lawyer has received the communication and also must stop reading the communication as soon as it is reasonable to determine that the communication should not have been sent to the lawyer. The lawyer is also required to follow the directions from the party sending the communication on how best to preserve the document for potential court review as to the use or admissibility of the document.

Lawyers should understand the requirements under both the Model Rules and the Wisconsin Supreme Court Rules but should pay particular attention to the requirements found in chapter 20 of the Wisconsin Supreme Court Rules.

» Cite this article: 94 Wis. Law. 46 (September 2021).