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    Wisconsin Lawyer
    September 07, 2007

    Lawyers Must Ensure Clients Do Not Use Legal Services for Inappropriate Purposes

    Dean R. Dietrich

    Wisconsin LawyerWisconsin Lawyer
    Vol. 80, No. 9, September 2007

    Lawyers Must Ensure Clients Do Not Use Legal Services for Inappropriate Purposes

    by Dean R. Dietrich

    It is well-recognized that the client makes decisions regarding the outcome of a representation, such as settlement, and the lawyer decides the strategy to be used in the representation to achieve that outcome. See SCR 20:1.2(a). Lawyers, however, should not allow their representation of a client to reach a point where the client is using the lawyer's services to create a fraud on the court or another party.

    Dean   DietrichDean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    The Rules of Professional Conduct require lawyers to advise clients if the client is asking the lawyer to take steps that are prohibited by the Rules of Professional Conduct or constitute a fraud or misrepresentation on the court. SCR 20:1.2(d) provides that "a lawyer shall not counsel a client to engage, or assist a client, in conduct which the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law."

    Lawyers also must advise clients if the action requested of the lawyer is contrary to the lawyer's ethical obligations. SCR 20:1.4(a)(5) provides that a lawyer shall "consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law." In addition, lawyers may not "advance a claim or defense that is unwarranted under existing law" under SCR 20:3.1 and "shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person" as outlined in SCR 20:4.4.

    It is difficult to balance the lawyer's duty of advocacy and representation of the client with the obligation to ensure that the lawyer's services are not being used for inappropriate purposes. In some instances, a lawyer may need to withdraw from representing a client. Under SCR 20:1.16, a lawyer may withdraw from representing a client under limited circumstances provided the withdrawal does not harm the client due to the stage of the proceedings. Court approval may be required to withdraw from representation in litigation matters.

    Some people suggest that the duty of zealous representation requires that the lawyer advocate the client's position as expressed by the client without regard to the propriety of the position being advocated for. The duty of zealous representation does not apply when the position advocated is potentially a violation of the Rules of Professional Conduct.

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