I’m an associate at a small firm, and I have been looking for other jobs for some time because of personality conflicts with two of the partners. I have just been offered a job at another firm that I intend to accept. However, because of the strained relationships at my current job, I don’t expect things to go smoothly when I give my notice. I have many clients who are quite happy with me and who I believe would follow me to my new firm. How should I go about making my departure?
No one, neither the firm nor the departing lawyer, “owns” clients, and clients have a right to go with the departing lawyer, remain with the firm, or seek other counsel altogether. Both the departing lawyer and the firm have a duty under SCR 20:1.4(b) to notify those clients for whom the departing lawyer is primarily responsible of the lawyer’s departure. The clients should be informed as well, preferably in a joint letter from the departing lawyer and the firm, of the clients’ options to go with the departing lawyer, remain with the firm or seek other representation.
References: State Bar of Wisconsin Formal Opinion E-97-2; and ABA Formal Ethics Opinion 99-414, Joint Philadelphia-Pennsylvania Bar Ethics Opinion 2007-300; Restatement (Third) of the Law Governing Lawyers, § 9.
During settlement discussions in an acrimonious divorce action, opposing counsel called me unethical and threatened to file a disciplinary complaint against me. Is it unethical for opposing counsel to threaten to file a disciplinary complaint against me in order to induce settlement? Is it unethical for opposing counsel to call me unethical?
The Rules of Professional Conduct do not expressly prohibit a lawyer from threatening to report opposing counsel to the disciplinary authority to gain an advantage in a civil case. However, the lawyer’s use of such a threat is constrained by the lawyer's obligation to report certain professional misconduct under SCR 20: 8.3(a), as well as by the prohibitions of SCR 20:8.4(a), SCR 20:8.4(b), SCR 20:8.4(c), SCR 20:3.1(a), SCR 20:4.1(a), and SCR 20:4.4(a).1
SCR 20:8.3(a) provides that a “lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” The Rule does not require a lawyer to report every violation: it limits reporting to “those offenses that a self-regulating profession must vigorously endeavor to prevent.” 2 However, in those instances when a lawyer is required by SCR 20:8.3(a) to report the conduct of another lawyer, the lawyer’s failure to do so is a violation of SCR 20:8.4(a). 3
A lawyer’s threat to file a disciplinary complaint is the logical precursor to an agreement to not file a complaint in return for an advantage in the civil case. An agreement to not file a disciplinary complaint would violate SCR 20:8.4(a) where the lawyer is required by SCR 20:8.3(a) to file a complaint.
Where the lawyer is not required by SCR 20:8.3(a) 4 to report, a threat to do so may violate several other rules such as SCR 20:8.4(b), SCR 20:3.1(a), SCR 20:4.1(a), and SCR 20:4.4(a). Under SCR 20:8.4(b), it is misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” If the lawyer’s threat constitutes extortion under the criminal law, then that conduct violates SCR 20:8.4(b).5 Moreover, a lawyer who threatens to file a disciplinary complaint when there is no intent to do so or when there is no violation of the Rules, violates SCR 20:8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, deceit or misrepresentation.
A lawyer who threatens to file a disciplinary complaint that is not warranted under existing law violates SCR 20:3.1(a). In addition, a lawyer who threatens to file a disciplinary complaint without any actual intent to do so violates SCR 20:4.1, which prohibits a lawyer from making a false statement of material fact. Such threats also violate SCR 4.4(a), which prohibits a lawyer from using “means that have no substantial purpose other than to embarrass, delay, or burden a 3rd person,” because it burdens both the lawyer threatened and his or her client by “introducing extraneous factors into their assessment of whether to settle.” 6
Similarly, calling opposing counsel unethical to gain an advantage is “the antithesis of professionalism,” 7 and may violate the attorney’s oath, which requires the lawyer to “abstain from all offensive personality.” 8 Violating the attorney’s oath is misconduct under SCR 20:8.4(g).
While the Rules of Professional Conduct do not expressly prohibit a lawyer from threatening to file a disciplinary complaint against opposing counsel, the Rules do constrain a lawyer’s use of such threats. A lawyer considering making such a threat should carefully consider the Rules of Professional Conduct.
1See ABA Formal Op. 94-383.
2ABA Comment  to SCR 20:8.3. “The term ‘substantial’ refers to the seriousness of the possible offense.”
3SCR 20:8.4(a) states that 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.”
For example, the lawyer may not “know” but may only suspect that the other lawyer violated a Rule, or the violation may not raise a substantial question of the other lawyer’s “honesty, trustworthiness or fitness as a lawyer in other respects.”
5See ABA Formal Op. 94-383.
7Iowa State Bar Ass’n Comm. On Ethics & Practice Guidelines, Op. 14-02 (Oct. 24, 2014).
While there is no duty to self-report rule violations, all Wisconsin lawyers must self-report criminal convictions and public discipline from other jurisdictions.
Lawyers are sometimes required to report the misconduct by SCR 20:8.3. Under SCR 20:8.3(a), a lawyer “who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” By its black-letter language, however, SCR 20:8.3(a) does not obligate a lawyer to self-report.
While SCR 20:8.3 does not require a lawyer to self-report, two other rules do require self-reporting in certain limited circumstances.
- Under SCR 21.15(5), a lawyer who is found guilty or convicted of any crime must notify the Office of Lawyer Regulation and the clerk of the Supreme Court within five days after the finding or conviction, whichever occurs first. A lawyer’s failure to self-report a criminal conviction is misconduct and may be prosecuted by OLR as a rule violation itself.
- Under SCR 22.22, a lawyer who has been publicly disciplined for misconduct or whose license has been suspended for medical incapacity by another jurisdiction must promptly notify the director of the Office of Lawyer Regulation. A lawyer’s failure to do so within 20 days of the effective date of the order of the other jurisdiction is misconduct.