Rare is a law school commencement address that does not include a stirring, evocative plea to the new members of the legal profession to change the world,1 leading to the inevitable question:
What ethical limitations apply to a lawyer advocating systemic reforms?
First: The Rules
While the rules encourage efforts to improve the law,
your clients come first!
The first rule is to zealously advocate for your client.2 When all parties are represented by skilled, competent counsel, the law is inevitably improved. For example, when prosecutors and defense counsel work together, zealously advocating, the best result for the client, society, and the criminal justice system is the most likely outcome.
Charles Stertz, U.W. 2009, is secretary and past chair of the State Bar of Wisconsin Criminal Law Section and an assistant district attorney in Outagamie County.
The first rule of engaging in reform conversations is to never talk about your clients’ cases. Client confidentiality is absolute, unless and until you have informed consent
in writing to reveal confidential communications. While we all know the effectiveness of using personalized anecdotes, lawyers must never use confidential client communication to make a point.3
It’s Possible to be an Advocate and an Agent of Change
As long as lawyers continue zealously advocating for their clients, and don’t reveal confidential client communications, the Supreme Court Rules encourage lawyers to “strive to improve the law and legal profession.”
The Court designed the rules to help a lawyer “remain an ethical person while earning a satisfactory living.”4
As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system.5
When advising clients, lawyers should “refer not only to law but other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.”6
In extreme cases, if the client doesn’t listen, SCR 20:1.16 allows a lawyer to let their feet do the talking, by petitioning to withdraw from a case when the client insists upon taking a position the lawyer “considers repugnant or with which the lawyer has a fundamental disagreement.”7
Regardless of whether the lawyer agrees with their clients, SCR 20:6.4 provides the ability to engage in activist groups, stating: “a lawyer may serve as a director, officer, or member of an organization involved in reform of the law” even if the reform “may affect the interests of a client.”
The only restriction is that “When a lawyer knows that the interests of a client may be materially benefited by a decision in which the lawyer participates, the lawyer shall disclose the fact but need not identify the client.”
Considerations on Prosecutors as Agents of Change
Prosecutors can be very effective agents of change. The rules do not provide any specific rules limiting prosecutors’ advocating for reforms. The prosecutor specific rules (20:3.8) deal mainly with third-party communications and disclosing exculpatory evidence.
While “Marsy’s Law” did not convert victims into clients, prosecutors would be wise to avoid using their stories to advocate change. Using personal information related to a specific victim, however well intentioned, could easily run afoul of the requirement that all involved in the justice system treat victims with “dignity, respect, courtesy, sensitivity, and fairness.”8
Beyond this, it would seem that the only limitations might be those imposed on employees by appointed or elected chief prosecutors within a jurisdiction, who may have some say in the nature and scope of participation in work-related advocacy or committees.
In summation: Be a leader. Change the world.
Just leave your clients out of it.
This article was originally published in the State Bar of Wisconsin’s
Criminal Law Section Blog. Visit the State Bar
sections or the
Criminal Law Section webpages to learn more about the benefits of section membership.
1 James E. Moliterno, "The Lawyer as Catalyst of Social Change," College of William & Mary Law School
Faculty Publications 925 (2009).
2See SCR 20 preamble §9.
3 SCR 20:1.6(a) and 1.9(c).
4 SCR 20 Preamble §9.
5 Wis. SCR 20 Preamble §6.
6 SCR 20:2.1.
7 The rule does not require the attorney to withdraw when a client’s position is repugnant.
8 Wis. Const. Art. I §9m(2)(a).