Formal and Informal Ethics Opinions

In Wisconsin, guardians ad litem (GALs) must be lawyers and as such, are bound by the Rules of Professional Conduct for Attorneys. While GALs represent the best interests of their wards rather than the wards themselves, certain rules that are specific to clients, including the rules governing conflicts of interest do apply and useful guidance can be found in Wisconsin caselaw. Conflict rules sometimes permit resolution of conflicts through obtaining the written and signed informed consent of affected current or former clients. This approach is not possible when the client is the best interests of the ward. In this opinion, the committee suggests a procedure whereby a GAL may obtain court approval for continued representation for conflicts otherwise subject to informed consent. The application of certain other rules to GALs is also discussed.

Migration of lawyers from one law firm to another is a common part of contemporary
practice and several ethics issues arise when a lawyer moves from one firm to another. This
opinion focuses on criminal practice and addresses the issues that arise when a lawyer is
migrating from defense to prosecution or prosecution to defense.
When a defense lawyer agrees to an interview with a prosecutor’s office or announces their
candidacy for the office of district attorney, the lawyer has a personal conflict in the continued
representation of criminal defense clients anywhere in the state. To continue representation of
clients, the lawyer must reasonably conclude the conflict will not adversely affect the
representation and obtain their informed consent in a signed writing.
The disciplinary rules prohibit a prosecutor from seeking employment with a firm involved in
cases the prosecutor is litigating. When a prosecutor agrees to an interview with a defense firm
with which the prosecutor has no cases, there is no automatic conflict. In some situations, specific
facts may give rise to a conflict, a situation that should be reported to the prosecutor’s supervisor
to seek consent or arrange for transfer of cases to another prosecutor.
If, in either situation, the lawyer ultimately changes positions, additional responsibilities arise.
The former defense lawyer-current prosecutor may not appear adversely in the same or
substantially related cases of former clients or in cases in which the lawyer possesses relevant
information relating to the representation of the former client. Such conflicts are not imputed to
others in the prosecutor’s office and the office may continue involvement in the affected cases if
the conflicted lawyer is timely screened.
The former prosecutor-current defense lawyer may not appear in any case in which they
participated personally and substantially, whether as a lawyer or otherwise, regardless of
adversity, absent written informed consent from their prior firm. Nor may they represent a client
whose interests are adverse to a person about whom the lawyer obtained confidential
government information while in government service. Other lawyers in the firm may represent
the client if the lawyer is timely screened and receives no fee in the matter. Prior opinions E-80-
12, E-86-18, E-86-15 and E-86-8 are withdrawn.

An individual lawyer who works part-time as an Assistant District Attorney prosecuting defendants on behalf of the State of Wisconsin and part-time for a private law firm has a conflict of interest which would bar the lawyer from representing defendants in state criminal cases.  That lawyer could still represent clients in opposition to the State of Wisconsin in non-criminal matters.  The lawyer’s conflicts would be imputed to lawyers in his private firm and could not be waived so that firm would be disqualified from representing defendants in state criminal cases.  The lawyer’s conflicts would not be imputed to lawyers in the District Attorney’s Office at which the lawyer works provided the lawyer is timely screened from any participation in the matter, in which case that office could continue to prosecute any case against any party as to whom the lawyer had a conflict.

The basic responsibilities that a lawyer owes the client – competence, diligence, communication, and confidentiality - lie at the core of lawyer’s professional obligations and remain unchanged irrespective of the lawyer’s physical location. What has changed is discharging these responsibilities effectively in a world increasingly dominated by technology and, more recently, in an environment where lawyers are isolated from their clients, their partners, their opponents and the courts in the face of the COVID-19 pandemic. The role of the partners, managers and supervising attorneys, whose responsibilities include insuring that both attorneys and non-attorneys in the firm, regardless of their location, comply with the requirements of SCR Chapter 20, is of increasing importance. Although certain current modifications in practice may diminish as the pandemic does, many are likely to continue as the profession and technology evolve. This opinion addresses several ways a lawyer’s responsibilities are affected.

A lawyer faced with cross examining1 a current client will have a conflict of interest that would prevent the lawyer from continuing both representations unless the conflict is subject to the written and signed informed consent of both clients. A lawyer faced with cross examining a former client will have a conflict if the subject matter of the prior representation is the same or substantially related to the examination or there is a substantial risk the lawyer will use information relating to the representation of the former client to the disadvantage of the former client. In both situations the conflict of interest would be imputed to other members of the lawyer’s firm.

When a client or third party files a grievance against the lawyer who is currently representing that client, serious consequences may follow for the lawyer. First, although the lawyer has an obligation to cooperate with the disciplinary office, responding to a grievance may be expensive and time consuming. Second, if the allegations are meritorious, the result may be professional discipline, sometimes public, for the lawyer, which may result in financial losses for the lawyer. Third, accusations of misconduct may damage the lawyer-client relationship. Most grievances, however, are closed without any finding of misconduct by the lawyer, and many are the result of the client’s misunderstanding of the role of the lawyer or court system. It is through the receipt of grievances by the Office of Lawyer Regulation that the Wisconsin Supreme Court regulates the practice of law and protects the public.

May an attorney represent both spouses in a divorce proceeding?

A lawyer who prepares a form contract for a client does not have a direct conflict of interest by reason of the fact that it may be used by that client in the future to negotiate a contract relationship with another party that may be a client of the lawyer. The lawyer, however, may not, in drafting the form contract, use or disclose confidential information of other clients of the lawyer. The lawyer may not then represent another party in negotiating against the client who is using the form contract without the informed consent of both. A lawyer may not provide representation for a client that involves the analysis or review of a contract form/template that was prepared by the lawyer or the lawyer’s law firm for another client.

This opinion addresses three questions about when a lawyer may interact with a person who is represented by another lawyer. Sometimes there is confusion about whether it is appropriate for a lawyer to communicate with such a person without the consent of the person’s counsel. Supreme Court Rule (“SCR”) 20:4.2 governs the lawyer’s responsibility in such a situation. In this opinion, the State Bar’s Standing Committee on Professional Ethics (the “Committee”) considers three situations. In the first, a lawyer who represents a client in Matter A wishes to communicate with a witness, who is represented by counsel in separate Matter B. In the second, a person who is already represented by counsel wishes to consult with a second lawyer about the possibility of retaining the second lawyer in the very matter in which the person is already represented. Finally, in the last situation, a client has discharged a lawyer and the client has retained successor counsel, and the first lawyer wishes to communicate with the client.

The ethical duty of confidentiality protects all information relating to the representation of the client, whatever its source, including the identity of the client. SCR 20:1.6 prohibits the disclosure of a client’s identity unless the client gives informed consent to the disclosure, the disclosure is impliedly authorized in order to carry out representation, or the disclosure falls within certain stated exceptions. Whether a client’s identity is protected by the lawyer-client privilege under Wis. Stat. § 905.03 is beyond the scope of this opinion.

Though maintained in the lawyer's office, the client's file is the client's property and SCR 20:1.16(d) requires a lawyer to surrender the file upon termination of the representation. The lawyer must honor a request for the file from a client or successor counsel, unless the client has instructed that the file not be provided to successor counsel. When a client requests that documents be provided in an electronic format and the lawyer has maintained those documents electronically, the lawyer should provide those documents in the electronic format. A lawyer may have to convert electronic files to paper format if the client lacks the technological expertise or financial means to access digitized images, but a lawyer normally is not required to provide both a hard copy and an electronic copy of the former client’s documents.

Lawyers may charge clients advanced fees, which SCR 20:1.0(ag) defines as an amount paid to a lawyer in contemplation of future services. SCR 20:1.0(ag) subjects advanced fees to the requirements of SCR 20:1.5 and SCR 20:1.16(d). Lawyers may also charge availability retainers to clients. SCR 20:1.5(b)(2) requires that the purpose and effect of any retainer be communicated to the client in writing when the total cost to the client of the representation is more than $1000. SCR 20:1.0(mm) prohibits lawyers from billing against retainers for fees or costs at any time, and subjects retainers to the requirements of SCR 20:1.5 and SCR 20:1.16(d). Because both advanced fees and retainers must be earned as required by SCR 20:1.16(d), and unforeseen circumstances may prevent such fees from being earned, a lawyer may not describe such fees as “nonrefundable” in communications with clients, including fee agreements.

A person who sends a unilateral and unsolicited communication has no reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship.  Consequently, the duties a lawyer owes prospective clients are not triggered by an unsolicited e-mail communication that “the lawyer receives out of the blue from a stranger in search of counsel, as long as the lawyer did not do or publish anything that would lead reasonable people to believe that they could share private information with the lawyer without first meeting [the lawyer] and establishing a lawyer-client relationship.”   To avoid creating ethical duties to a person in search of counsel, a lawyer who places advertisements or solicits email communications must take care that these advertisements or solicitations are not interpreted as the lawyer's agreement that the lawyer-client relationship is created solely by virtue of the person's response and that the person’s response is confidential.  The most common approach is the use of disclaimers. These disclaimers must have two separate and clear warnings:  that there is no lawyer-client relationship and that the e-mail communications are not confidential.  Moreover, these warnings should be short and easily understood by a layperson. Use of nonlawyer staff to screen or communicate with prospective client will not relieve a lawyer of responsibilities arising under SCR 20:1.18.

When a lawyer has received information from a prospective client that could be significantly harmful to the prospective client, the lawyer may not thereafter represent a client whose interests are adverse to the prospective client in the same or a substantially related matter.  Information may be “significantly harmful” if it is sensitive or privileged information that the lawyer would not have received in the ordinary course of due diligence; or if it is information that has long-term significance or continuing relevance to the matter, such as motives, litigation strategies, or potential weaknesses. “Significantly harmful” may also be the premature possession of information that could have a substantial impact on settlement proposals and trial strategy; the personal thoughts and impressions about the facts of the case; or information that is extensive, critical, or of significant use.  Lawyers may avoid such conflicts by limiting the information received from prospective clients and, with appropriate waivers, seeking a prospective client’s agreement that consultations will not result in subsequent disqualification.

When a lawyer has personally and substantially participated in a matter as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, the lawyer may not thereafter represent anyone in connection with the matter, and this prohibition includes acting as a GAL in the same matter.

This opinion discusses a prosecutor’s responsibilities under Wisconsin’s Rules of Professional Conduct for Attorneys (the “Rules”) when contacting unrepresented persons. The first step in analyzing a prosecutor’s obligations under the Rules is defining what is meant by the term “prosecutor.” The former version of the Rules contained no definition of the term and, traditionally, the term “prosecutor” was assumed to refer to a government attorney handling a criminal case.

This Opinion discusses the extent to which SCR 20:4.2 prohibits contact with current and former constituents of an organization when the organization is represented with respect to a matter. The Opinion also discusses the obligations under the Rules of Professional Conduct of lawyers seeking to contact constituents of represented organizations and the obligations of lawyers representing organizations.

Professional ethics opinion E-00-02 considers lawyers sharing office space, support staff, and equipment with unrelated entities.

Professional ethics opinion E-99-1 considers outside auditors review of attorneys bills for services and restrictive guidelines by an insurer on providing a legal defense to an insured.

Under what circumstances may a law firm use temporary or contract attorneys in Wisconsin?

We represent a personal injury plaintiff whom we are unable to contact. We have pursued numerous leads in an effort to learn our client's whereabouts to contact him, all of which have proven unsuccessful. What are our responsibilities under these circumstances?

Assume that an attorney works as a volunteer counsel for an organization that provides information about landlord-tenant law. If the attorney advises a caller that he or she is an attorney, is a lawyer-client relationship formed? Is the attorney-volunteer precluded from answering questions from both the landlord and tenant relating to the same matter?

Is it permissible for a paralegal employed by a law firm to attend a real estate closing on behalf of a client if: 1) a lawyer with the firm previously has reviewed the closing documents; 2) the paralegal will not provide any legal advice or legal opinion at the closing; 3) the client will not otherwise be represented at the closing; and 4) the client consents to the arrangement?

Is a lawyer for a private person who is involved in a noncriminal matter involving a governmental entity precluded from making direct contact with government officials or employees about the matter, when the lawyer knows that the governmental entity is represented by counsel in the matter?

May an attorney agree to represent a person who decides to retain the attorney as a result of attending the attorney's presentation at a seminar or other educational or client-development program?

If an attorney increases his or her hourly fee for cases that are referred by another attorney, with the differential increase in the receiving attorney's fee being paid to the referring attorney as a referral fee, must the client be advised of the increase in the fee? Does the answer differ if the increased fee of the receiving attorney is the same as the regular hourly fee that would have been charged by the referring attorney?

Is it permissible for lawyers who provide estate planning services to their clients to retain the services of a financial planner, with the client's knowledge and consent and at a reasonable fee, to perform the following services: ...

May a lawyer knowingly commence a small claims action in a venue that has no substantial purpose other than to embarrass, delay or burden a third person?

Notwithstanding the section 767.075(2)(a) of the Wisconsin Statutes disclaimer of an attorney-client relationship by a corporation counsel with any person except the state in child support enforcement actions, what are a corporation counsel's professional responsibilities to parties other than the state?

Assume Attorney A, a sole practitioner, and an individual, Client B, execute a valid personal injury written contingency agreement under SCR 20:1.5(c). Assume further that the written agreement provides for an attorney’s lien consistent with SCR 20:1.8(j)(1) and (2). Disregarding the value of the contingency case or the contingent fee, may Attorney A ethically offer, tender or negotiate the attorney's lien in Client B's case as collateral, assignment or guarantee for a personal loan that Attorney A seeks for himself? Would the answer differ if the proposed lender was a sophisticated commercial lending institution or another party who has no experience as a lender?

In pursuing a personal injury case for a plaintiff, an attorney is asked by the plaintiff's medical and hospitalization insurance carrier also to pursue a subrogation claim against the responsible tortfeasor. There are both liability and contributory negligence issues. Initial review indicates that adequate insurance coverage for the other party is not a problem. Under what circumstances, if any, may the attorney represent both the plaintiff and the subrogated insurance carrier without violating the Rules of Professional Conduct?

Assuming that a supervising attorney in the Public Defender's Office increases the workload of a staff attorney in excess of caseload standards approved by the State Bar Board of Governors, or some other nongovernmental body, and the staff lawyer declines new matters, may the supervising attorney ethically sanction the lawyer either by terminating the lawyer's employment, withholding compensation or changing the lawyer's responsibilities by transfer?

May assistant SPD attorneys ethically represent co-defendants whose interests are in conflict if one attorney is a member of the regular trial division and the other attorney is a member of the special-conflicts office, as described above?

Should a lawyer disclose to the Internal Revenue Service, as required by 26 U.S.C. section 6050I, Form 8300, information revealing the identity of a client who pays a cash fee in excess of $10,000?

How may independent lawyers or law firms hold themselves out to the public as being associated on an ongoing basis in the practice of law?

What professional conduct guidelines would the Professional Ethics Committee suggest for full-time house counsel under the following circumstances: ...

May lawyers use the services of local chapters of Welcome Wagon International Inc. in advertising their law practices?

[A] husband and wife are lawyers. One has been elected district attorney. The other practices with a law firm in the same county that represents criminal defendants. What ethical restrictions are imposed on the spouses and the law firm when the law firm and district attorney's office are opposing counsel in particular matters?

Under circumstances in which a retired or unemployed nonexpert witness must spend a substantial, but reasonable and necessary, amount of time in preparation, travel and/or testifying, may a lawyer compensate the witness for his or her time at a rate that would approximate the hourly wage that the witness would be earning if he or she had not been unemployed or retired?

1. May a lawyer for a party or witness in a proceeding communicate with a guardian ad litem in the proceeding without the knowledge or consent of the other counsel involved in the proceeding? 2. May a lawyer for a party or a witness in a proceeding communicate with a guardian ad litem’s ward without the knowledge or consent of the guardian ad litem? 3. May a guardian ad litem communicate with a represented person in a proceeding without the knowledge or consent of that person’s attorney?

Must a lawyer report a violation of the rules of professional conduct of opposing counsel, that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, to the appropriate disciplinary agency if reporting the information would prejudice the interests of the lawyer's client in the representation in question?

Under what circumstances may a lawyer represent both majority and minority investors in the formation of a business partnership or corporation? And, may a lawyer continue representing only one or some of the common clients if the common representation must be terminated?

What limitations are placed on lawyers' compensation of nonexpert witnesses?

May an attorney or the attorney's law firm represent a party to a divorce action as counsel for petitioner, respondent or guardian ad litem for the children in such a divorce action when the attorney's spouse is the sole social worker in the county responsible for custody studies and domestic abuse studies?

Four questions and answers on client trust funds and property.

May a nonincumbent candidate for judicial office retain his or her membership and office(s) in a political party during the campaign?

May the lawyer continue representing the respondent in the divorce action and the corporation in its two lawsuits?

A lawyer represents a seller in a commercial real estate transaction. Shortly before the closing, the lawyer learns from his or her client that hazardous wastes are buried beneath the surface of the land being sold. The existence of such hazardous materials has not been disclosed to the purchaser.

Assuming that a lawyer remains as an associate working as an employee for a solo practitioner and the solo practitioner dies prior to retirement, what are the associate's duties and obligations to clients with matters pending in the solo practitioner's office? For example, what if the personal representative of the estate of the solo practitioner refused to compensate the lawyer for any future services, significantly reduced the compensation or discharged the associate? What duties would the lawyer owe his or her clients at that point? And, assuming the lawyer does owe a duty to them, how should it be discharged?

Under what circumstances may a lawyer accept referrals from a lawyer referral service that is organized as a profit-making venture and to which the lawyer has paid a fee or given anything of value?

May a former house counsel for a corporate employer represent clients against his or her former corporate employer/client in matters not pending prior to or at the time of his or her termination of employment?

May an attorney who once acted as guardian ad litem for a child in protective services proceedings subsequently act as prosecutor in a termination of parental rights proceeding involving the same child?

May a lawyer ethically seek to recover unreimbursed costs directly from a worker's compensation claimant-client outside of the worker's compensation proceedings?

A public prosecutor is prosecuting a defendant for a crime. During the course of the prosecution, the prosecutor becomes aware of a witness who may be helpful to the defendant. The witness contacts the prosecutor and asks if he or she should talk to the defendant's lawyer or investigator.

Under what circumstances, if any, may a lawyer who also is licensed as a real estate broker ethically: 1. Accept compensation from a realtor for the lawyer’s referral of a current client to the realtor whether or not sale of the real estate in question relates to the current representation (e.g., in a divorce action); and 2. Perform and be paid for both the brokerage and legal services for a client in, for example, a divorce or probate matter?

Is it necessary for the prosecutor to seek or recommend appointment of a special prosecutor to eliminate a possible appeal of sentence based on allegations or prosecutorial vindictiveness if the defendant is convicted?

Is it ethically permissible for a small city attorney's office to prosecute a city employee for an ordinance violation if that city employee, both in the past and in the future, investigates, enforces and testifies on behalf of the city in various ordinance enforcement actions (actions unrelated to the employee's offense)?

May a lawyer-county board member or state legislator represent persons in Chapter 48 (Children's Code) and Chapter 49 (Public Assistance) proceedings in which employees of the same governmental unit testify?

If an assistant district attorney's spouse is a deputy sheriff in the same county, do the standards of conduct applicable to attorneys require the assistant district attorney to treat cases investigated by the spouse different than those investigated by other law enforcement personnel?

In 1982, a partner in law firm Z defended a former farm implement dealership against the grantor of the dealership in a collection action that was brought after termination of the dealership. As a result of the representation, the partner became familiar with the workings of the dealer's business record keeping methods. The case was settled in 1982, and law firm Z has not represented the dealer since then. Currently, the dealership is attempting to collect the remainder of a bill plus interest for the sale and installation of a milking system to X. X's defense are: (1) the bill is not owed because the work was not completed as originally agreed; and (2) the system was either defective or improperly installed causing a stray voltage problem that resulted in damage to X.

May an attorney list his or her legal assistants on the attorney's law firm letterhead?

A lawyer commences a mortgage foreclosure action for the first mortgage holder on a certain property. The complaint requests a deficiency judgment in the event that the sheriff's sale proceeds are insufficient to cover the total amount owed to the plaintiff mortgagees. The lawyer's law office has a second subordinate mortgage on the same property covered by the first mortgage. The lawyer lists his or her firm as a defendant and intends as second mortgage lienholders to assert a claim against any surplus proceeds that may arise from a sheriff's sale of the property.

Is it permissible for a lawyer to represent criminal defendants when the lawyer's spouse is the sheriff in the county where the lawyer practices?

A lawyer represented a client in an action. Two years ago the client received a judgment. Subsequently, the law office has handled other legal work for the client unrelated to the initial action. Recently, the client has expressed dissatisfaction with the law office on grounds unrelated to the original action and has requested the file.

If a member of a law firm has been elected to a part-time municipal judge position whose jurisdiction is limited to hearing municipal ordinance violation cases, (1) may members of his or her firm represent clients in matters involving the town where the municipal judge is employed, and (2) may members of the firm appear in the municipal court of the town where the part-time municipal judge is employed?

When summonsed or subpoenaed by the Internal Revenue Service, a grand jury or another investigative body, is it proper for a lawyer to reveal the name of a client, the amount of money paid to the lawyer by that client, the purpose of the payment, and other financial transaction information relevant to the client?

A lawyer handles worker's compensation cases with the aid of a layperson authorized under Wis. Stat. sec. 102.17 (1)(c) (1981-82) to appear before the Department of Industry, Labor and Human Relations (DILHR) hearing examiners in such cases. The lay practitioner acts independent of and is not an employee of the lawyer. Both the lay practitioner and the lawyer are named on retainer agreements with clients so clients understand that they are employing both parties. Either party may perform any of the work involved in any particular case, including drafting and filing documents, attending pre-hearings, hearings and appeals. Fees charged clients would be within DILHR and statutory limits. DILHR determines fees awarded in worker's compensation cases and generally does not apportion fees. Assuming DILHR attorney's fees are awarded to the lawyer, is it ethically proper for the lawyer to divide those fees with the lay practitioner?

A family court commissioner maintains a private law practice. An associate of the family court commissioner plans to marry a lawyer member of Law Firm X located in the county where the family court commissioner practices. May members of Law Firm X appear before the family court commissioner once the associate marries a member of Firm X?

May a lawyer retained by an insurance carrier simultaneously represent the insurance carrier and an insured defendant in a cause of action for bodily injuries sustained in an automobile accident where a claim for punitive damages is asserted?

An insurance company is creating a subsidiary which will act as a resource center and referral agency for the company's independence agencies. The subsidiary wishes to have available a law firm to accept referrals concerning certain legal problems. The subsidiary proposes to charge a fee for such referrals equalling 2 percent of the fees generated by the law firm handling the referred case. Rather than being a referral commission or finder's fee, the fee charged is intended to cover costs involved in operating the subsidiary. Would it be proper to pay a fee for such referrals?

When a lawyer represents a complainant in a criminal matter and requests the prosecutor's office to respond with regard to its handling or review of the matter, may the prosecutor's office when responding to the lawyer, forward a copy of that response to the client/complainant without violating Wisconsin Supreme Court Rule 20.38(1)?

May a law firm send a letter describing the firm's "specialties," specific areas of practice and general information about the firm to union members in a specific geographic area?

Full-time staff lawyers in a state public defender office have no direct control of their caseloads, as do many private lawyers who may seek business or turn down proffered employment, but instead must accept cases assigned by supervisors. Because of various political pressures, supervisors may be forced to attempt to reduce costs and/or increase productivity, which results in increased caseload pressures for staff lawyers. Three questions have been posed with regard to a lawyer's obligations in such a situation.

An opinion regarding the utilization of a lay consulting service in personal injury cases was requested of the Ethics Committee. The service represents that it does not practice law or medicine, but restricts its services to technical, medical-legal consultation and research, and the procurement of expert witnesses. The consulting services are offered on a contingent fee or flat fee basis.

May a law firm withhold a client's share of a settlement fund in order to apply it against the general indebtedness of the client to the firm?

What are an attorney's obligations to his plaintiff-client when a counterclaim is made alleging a frivolous action by the plaintiff, and the defendant demands costs and attorney fees to be assessed against the plaintiff and the plaintiff's attorney under sec. 814.025, Wis. Stats.?

In the trial of a divorce case, the tax aspects of the proposed property division, maintenance and support often are at issue. An accountant's testimony is sometimes needed to ascertain the fair market value of the assets and is usually required to prove the tax effect upon the parties in the financial distribution of the estate.

An attorney represented a wife and husband in a proceeding concerning whether or not the wife's minor daughter was in need of protective custody or placement in a foster home. The husband is a stepparent with no custodial rights. Both the mother and the stepfather agreed that placement in a foster home was in the daughter's best interest. A charge was made that the stepfather sexually abused the child. The stepfather denied the charge, but pleaded no contest to the charge at the final disposition.

May an assistant corporation counsel who represents the state in paternity actions also represent the mother in the paternity proceedings?

An insurance company proposes to contract with an attorney to act as defense counsel in personal injury claim matters. The contract would provide for a set fee in each case up to the time of trial. The fee would be a blanket fee, arranged in advance for any case referred to the attorney or his firm. The blanket fee would not take into account the amount of work to be done in each individual case. Is it ethical for an attorney to agree to such arrangement?

May an attorney contact an opposing party's expert witness, including treating medical doctors without the permission of the opposing counsel?

May an organization which is not a party to a class action suit provide funds to help defray the litigation expenses of the suit provided the organization does not share in any proceeds the suit might recover?

May a municipal attorney represent both the municipality and municipal police officers in personal injury action commenced against both the municipality and its police officers claiming punitive damages arising out of the officers' alleged use of excessive force or the officers' actions outside the scope of their employment?

May an attorney represent the driver (D) of auto #1, or the owner (O) thereof, or both, for damages sustained by them as the result of a collision with auto #2 after the attorney represented and settled the claims of two guest passengers of auto #1 arising out of the same collision with auto #2?

An opinion has been requested to the State Bar Professional Ethics Committee concerning the propriety of an attorney for a government agency providing an opposing attorney's client with copies of correspondence sent to the opposing attorney in the following situations: 1. The attorney is involved in a "run-of-the-mill" case, but the client undoubtedly has a vital interest in and concern about the government agency's activities; 2. There are no precedents supporting the attorney's position, and it is suspected the attorney's clients are not apprised of numerous precedents that are consistently adverse to their interests.

May an attorney destroy the contents of a client's file at the client's request under the facts submitted?

A husband and wife executed wills disposing of all of their property to the survivor on the death of the first and disposing of the balance of their property on the death of the second of them to their common descendants as well as descendants only of the husband. On the same date the couple executed their wills, they also executed a written contract not to change their wills. The contract clearly expresses the intent that the wills were not to be changed after the death of either of the parties. The husband subsequently died, his will was probated, and his estate was closed. No reference was made in the probate proceedings to an agreement to not change the wills.

Does an attorney have an ethical obligation to inform his or her client that an omission has occurred which may constitute malpractice and that the client may have a claim against him or her for such an omission?

Would it be proper for a law firm to publish a newsletter which would contain general information on a designated area of the law and which would be sent to clients and acquaintances of the firm's members? The articles would be written by an attorney from the firm and the name of the law firm would appear on the newsletter.

May a lawyer (or a law firm) transfer its accounting to a computer system, and in connection therewith, place all funds received by the lawyer (or the law firm) in one account - the trust account - although the computer system will account for the funds as though two separate accounts existed (client trust account and firm operating account)?

May a deputy city attorney who represents the city in contract negotiations with the municipality's medical insurance carrier, and who also participates in a policy-making body which monitors the insurance carrier's contract performance, simultaneously sit on the insurance carrier’s board of directors?

Attorneys A and B are husband and wife. Attorney A is employed as assistant corporation counsel in ________ County. Attorney B is employed by a private law firm in the same county. In which of the following situations, if any, would representation be improper?

Does a prohibited conflict occur when an attorney representing a plaintiff in a suit against the county government attempts, in an independent suit, to represent the interest of the county against another defendant?

May a law firm present seminars on specific legal topics for the benefit of the public without the sponsorship of a bank or similar institution?

May a lawyer or a law office operate under a trade name?

Does a lawyer have the right to insert on his billing an interest charge in the event that the bill remains unpaid for 30 days?

May one member of a law firm (Lawyer A) draw a will for the spouse of another member of that law firm (Lawyer B) when the will distributes the entire estate of the spouse to said Lawyer B to the exclusion of their children?

Attorney A was employed by B and C, who had been partners in a business venture and wished to incorporate. He met with the two men, both individually and as a group, on an extensive basis. He then drew up the necessary papers for incorporation but B and C then abandoned the idea and the papers were never executed. B continued to operate the business alone and under the corporate name. Several months later, he terminated his relationship with A. Nearly a year after the last meeting between A, B, and C, C asked if there would be an annual meeting of the corporation. Apparently misinformed concerning the final results of the earlier meetings, A told C that the corporation had never been formed. C now has asked A to represent him in an action to recover his share of the partnership assets, which would require commencing such action against B.

May a lawyer prepare and disseminate an "Ask the Lawyer" column?

What is the propriety in a commerce consulting corporation using the following letterhead in advertising and soliciting business: Auditors and Consultants in Traffic, Ltd.

Under what circumstances, if any, would your law firm be disqualified from representing a specified client if an official of a state agency with regulatory jurisdiction over that client were to become a member or associate of your firm?

The committee has received an inquiry as to whether the amendment of a criminal complaint upward to allege a felony violation raises an ethical problem where previously defendant had been charged with a misdemeanor. The district attorney had hoped to obtain a guilty plea and spare the alleged nine-year-old victim of the trauma of testifying at a trial, but when the defendant chose to plead not guilty to the charge the trial seemed inevitable.

An inquiry was posed to the Ethics Committee of the Wisconsin Bar Association concerning the propriety of an attorney handling a claim against an insurance company for which an investigation of the same matter had been previously undertaken.

Does the Code of Professional Responsibility promulgated by the Supreme Court of Wisconsin prohibit Attorney A from representing clients for compensation before state agency B?

One member of a law firm which is involved in criminal law practice has been appointed an assistant district attorney to administer the Federal Child Support Program in that county. The duties include the determination of paternity and the collection of support obligations, both civil and criminal. The inquiry is whether any other member of that firm may accept the defense of private clients in criminal cases even though there is full disclosure and consent.

An attorney is retained by client to defend the client against a shoplifting charge. The attorney makes a tape recording of the client's discussion of the matter. At trial, the client is found guilty but the case is left open for dismissal upon a finding of 6 months good conduct on the part of the defendant. Shortly thereafter, the client dies. His widow, who is appointed special administrator of his estate, seeks to obtain the tape recording, or a copy of it, for her own personal sentimental reasons. It seems that during her husband's lifetime no other recording was made of his voice; therefore, she wants the only available recording. Incidentally, the tape was played for her once and she knows the contents of it. May the attorney who made the tape recording release it to the widow without violating the Canons of Ethics?

Under the facts presented above, to what extent can Attorney Y comply with Mr. X's wishes? Can s/he draft all of the documents and include her/his firm in these documents as mandatory attorney for both the estate and the trust? Can s/he, additionally, appoint herself/himself co-trustee or appoint a single corporate trustee, but require that the corporate trustee exercise no discretion without the advice and consent of her/his law firm?

The committee has received an inquiry concerning the ethical responsibility of an attorney for the estate of a decedent who received a letter from a potential claimant against the estate announcing his desire to file a claim in the estate for care, medical services, and hospitalization for the decedent provided at his own expense upon the assurance by the decedent that he would "be taken care of."

A county bar association, a voluntary group of attorneys within a county has formulated a proposal which calls for all attorneys within a county to render gratuitous legal services to indigent persons upon a rotational basis, within its guidelines set forth in the plan. As a part of the proposal, each member would be assessed a sum of approximately $100-150 for each assigned case which is refused by that attorney. There has been a negative reaction by one or more lawyers who maintain offices within the county. The inquiry is whether enactment and enforcement of such proposal would be ethically proper?

The Legal Services Center (hereinafter, "the Center") is obligated by contract with the County to provide criminal and juvenile representation for indigent defendants in county courts. Under that contract, the Center agrees to "Furnish staff attorneys who will directly accept all criminal-juvenile court appointments offered by the Judges of the County." The Board of Directors has directed that, when staff attorneys represent co-defendants charged with the same crime and having possibly conflicting interests, the attorneys are to file appropriate motions to have private counsel appointed for one or more of the defendants. Such motions had been filed occasionally before the Board's directive, and have always been denied.

May an attorney for two creditors of a particular debtor properly apply funds, which the attorney holds in his trust account, to the claim of one of his creditorclients, when such funds are held in trust by the attorney under the following circumstances: ...

Attorneys on the staff of the Non-profit Legal Services Corporation are not permitted to carry on a private practice and are full-time employees of the corporation.

The Professional Ethics Committee has considered your request for an opinion as to the ethical propriety of a corporation organized by lawyers who are members of the law school faculty, as a private and profit making venture independent of the law school, to perform legal research for practicing attorneys and incorporate the results of that research in memoranda or other appropriate documents.

This inquiry concerns the ethical propriety of an attorney who has been retained to represent an individual person who seeks to file a petition in federal bankruptcy court under circumstances in which a corporate creditor of such client would become responsible for paying the legal fees and court filing fees for such petition, for which the debtor-client would sign an additional note and agree to reaffirm such obligation, of which proposed action the attorney has knowledge. In addition the attorney previously has represented the corporate creditor and debtor.

The Professional Ethics Committee has considered your request for an opinion as to the propriety of your preparation and circulation of a divorce handbook for your domestic relations clients only. You have included a copy of your revised text of this proposed publication.

Your staff counsel has indicated that your office has had several inquiries concerning the rules or ethical prohibitions for attorneys who are candidates for judicial office.

Your section has requested the advice, and if desirable the formal opinion of this committee with respect to the ethical propriety of the past and future conduct of those attorneys who engage in the practice of safekeeping wills for clients.

You have asked whether the officially sanctioned activities of the Lawyers Judicial Endorsement Executive Committee are excepted from the purview of advisory opinion 1971-A which was published in the April, 1971 [Wisconsin] Bar Bulletin.

The committee in an opinion dated October 26, 1970 [E-70-1], adopted the above opinion without the words "or for a candidate for the office of judge." The committee has now been requested to consider whether the October 26, 1970, opinion should be extended to include the words "or for a candidate for the office of judge." The committee believes that the opinion of October 26, 1970, should be so extended.

An attorney questioned the propriety of a lawyer, who is acting as a bargaining representative for a county association of deputy sheriffs, permitting his partners or associates to accept criminal and juvenile defense work in that county because of the possibility of a conflict of interest.

This inquiry concerned the ethical propriety of the conduct of attorneys who were past presidents of the State Bar permitting their names to be listed along with their standing as a past president in endorsing a partisan political candidate for statewide office, because of the possible interpretation by the public that such political endorsements could be construed as an endorsement by the State Bar of Wisconsin.

The Professional Ethics Committee approved the statement of policy proposed by Wisconsin Judicare relative to the matter of attorneys refusing to represent Judicare clients.

This committee was requested to consider whether it is proper for a court commissioner to appear in private litigation before the judge who appointed him. Our opinion is that it is proper for him to do so.

The Ethics Committee has considered several inquiries from members of the State Bar following the State v. Collentine, 39 Wis. (2d) 325, decision regarding the drafting of wills by attorney-beneficiaries. In its decision of June 8, 1968, the Supreme Court established the rule prospectively that an attorney may be scrivener of a will in which he is a beneficiary only when he stands in relationship to the testator as a natural object of his bounty and in instances in which he will receive no more than he would have received at law in absence of such will. The Court emphatically stated that under any other circumstances in which a lawyerdraftsman received a larger bequest that it would conclude that such activity would constitute unprofessional conduct.

This inquiry concerns the propriety of an active member of the Bar creating a partnership in which the lawyer proposes to engage in labor-management relations work and his non-lawyer partner will be active in market research analysis advice and similar business advice. There was the additional question as to the attorney advertising this labor management relations advice, either alone or with his partner's advertising.

May a full-time or part-time district attorney properly represent a citizen whose land is being taken in condemnation proceedings brought by the State Highway Commission?

You advise that a lawyer wants to retire and sell his furniture, equipment, files and records to a younger lawyer. He tells some of his clients that he proposes to retire and has "sold his business" to the younger lawyer. One of the clients demands all of his files from the retiring lawyer who refuses to deliver them and says that he has sold the files and records to the younger lawyer. Your inquiry is as to the propriety of this and whether or not the client is entitled to his files.

The opinion of the Ethics Committee has been requested on the question of whether or not any violations of Canons 27, 34, 35, 41, 47, or other of the Canons of Professional Ethics are involved under the following circumstances: ...

May an attorney who is a member of a city council or a county board properly accept a case from a claimant against the city or county, and sue the city or county while he still is a member of the city council or county board?

An individual lawyer who works part-time as an Assistant District Attorney prosecuting defendants on behalf of the State of Wisconsin and part-time for a private law firm has a conflict of interest which would bar the lawyer from representing defendants in state criminal cases. That lawyer could still represent clients in opposition to the State of Wisconsin in non-criminal matters. The lawyer’s conflicts would be imputed to lawyers in his private firm and could not be waived so that firm would be disqualified from representing defendants in state criminal cases. The lawyer’s conflicts would not be imputed to lawyers in the District Attorney’s Office at which the lawyer works provided the lawyer is timely screened from any participation in the matter, in which case that office could continue to prosecute any case against any party as to whom the lawyer had a conflict.

You have requested that the Committee on Professional Ethics reconsider its Formal Opinion E-83-13. The committee's opinion follows.