Wisconsin Lawyer: Ethics Encouraging Client Misconduct Risks Sanctions:

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    Encouraging Client Misconduct Risks Sanctions

    Telling a client to take an action that would violate Wisconsin’s Rules of Professional Conduct if engaged in by the lawyer is itself a violation of the rules.

    Dean R. Dietrich

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    Question

    I recently attended a seminar where one of the speakers suggested that clients should consider putting false information on a social media site in order to trick the other side, because the other party will be investigating what the individual has posted online. This does not seem right to me. What do you think?

    Answer

    You certainly have the right instinct on this question. Lawyers should not be involved in any type of conduct that is false or misleading. This includes situations in which the client is the one engaging in the conduct with the knowledge of or based on the advice of the lawyer. That would violate SCR 20:8.4 of the Wisconsin Rules of Professional Conduct and could be a very serious matter if information is presented to the Office of Lawyer Regulation showing the involvement of a lawyer in recommending or assisting a client to engage in this type of behavior.

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

    The Supreme Court Rules provide that a lawyer must not engage in a violation of the Rules of Professional Conduct through the acts of another. See SCR 20:8.4(a) and (c), which provide as follows:

    It is professional misconduct for a lawyer to:

    (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

    (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;…

    The Rules also contain a definition of misrepresentation in SCR 20:1.0(h):

    (h) “Misrepresentation” denotes communication of an untruth, either knowingly or with reckless disregard, whether by statement or omission, which if accepted would lead another to believe a condition exists that does not actually exist.

    All the above rules would apply directly to a situation in which a lawyer is advising or recommending that a client put false information on a social media site so that such false information could be conveyed to an opposing party and be incorporated into a litigation matter or some other representation. The lawyer would be embarking on a very dangerous course of conduct if the lawyer in any way participated in some type of deception on a social media site, especially if the deception was designed to obfuscate an issue in a legal dispute.

    Allegations of misconduct are the most serious types of allegations that can be made against a lawyer. Every lawyer should take the highest precautions against becoming involved with or making decisions that could result in conduct that is misleading or misrepresents the truth.

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact State Bar ethics counselors org tpierce wisbar Timothy Pierce or org akaiser wisbar Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.




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