Memorandum Ethics Opinions

Where a former part-time district attorney has successfully prosecuted an accused for the wrongful killing of a state patrolman, it would be improper for him later to represent the widow in a civil wrongful death claim against the accused.

In response to a request for the committee to take a position that it is improper for a part-time district attorney to accept divorce cases in his private practice, after careful consideration the committee declined to hold that such conduct is improper, stating that the district attorney could be faced with conflicts of interest in many facets of his law practice because of his public responsibilities and that by focusing on the divorce area only one phase would be covered.

It is not per se unethical for members of a firm to represent criminal defendants when the prosecutor is the spouse of one of the firm's partners. Extreme care should be taken, however, to avoid a conflict of interest or the appearance of impropriety.

A prosecutor may not appear as an advocate in a case in which the prosecutor is likely to be a necessary witness on a contested material fact. SCR 20:3.7(a). Exceptions to the rule apply for testimony on uncontested matters, testimony concerning the costs of legal services, or when disqualification would be a substantial hardship on the lawyer’s client. SCR 20:3.7(a)(1)-(3). A necessary witness is one whose testimony is relevant, material, and unobtainable by other means.

May a law firm hired on a case-by-case basis to defend an automobile liability insurance carrier represent a plaintiff against that insurance company? Alternatively, if a law firm is on a general retainer with the insurance company can it represent a plaintiff against that insurance company?

May a partner or associate of a lawyer who is a member of a local school board represent minor passengers injured while riding a school bus, when it is contemplated that the resulting legal claim shall be made against the liability insurer for the contracting school bus company, and not against the school board or district?

What are the ethical obligations of a defense lawyer when a local court rule requires the lawyer to file a motion to withdraw at the pretrial hearing if the lawyer has not been in communication with the client?

The creation of Crime Prevention Funding Boards (CPFB) is authorized by Wis. Stat. §59.54(28).1 Under this law, a County Board of Supervisors may approve a resolution to create a CPFB. Once a CPFB is created, a $20.00 surcharge is added to all felony and misdemeanor convictions in that county. The county treasurer collects the money, and the CPFB then distributes the funds in grant form to entities that have as their primary purpose preventing crime, providing a funding source for crime prevention programs, encouraging the public to report crime, or assisting law enforcement agencies in the apprehension of criminal offenders.

If a lawyer representing a plaintiff speaks with a defense witness and in the course of the conversation, the defense witness reveals information about possible illegal conduct by the defendant with respect to the witness and other information which greatly undermines the defense, may the lawyer continue to represent the plaintiff in the matter?  Assume, for purposes of the question, that there were no other persons privy to this conversation.

It is improper to offer a law practice for sale. A lawyer's clients are not merchandise, nor is a law practice properly the subject of sale. A lawyer may properly sell the physical assets of her/his practice, and those accounts receivable which represent work completely finished. As for accounts representing work in progress, the client must be informed s/he is free to select any attorney to finish the work begun by attorney whose law practice has ended.

Use of paralegals is ethical and to be encouraged because it offers the opportunity to provide legal services to more people at potentially lower costs. There are ethical problems involved, however, particularly in the area of avoiding the unauthorized practice of law.

It would not be improper for an attorney to purchase an advertisement in the local high school annual.

Where an attorney is a member of the board of education it would be proper for her/his partner to represent the school district only if all parties are fully informed of the relationship between the attorneys and consent after being informed. Even with consent, there may be circumstances in which one or both of the partners will have to withdraw from involvement where a conflict or the appearance of impropriety exists.

It is not improper for an attorney to draft a will for a member of the State Bar in which there is sizeable bequest to a society of which the drafting attorney is an officer.

It would be improper under DR 2-101(B) for an attorney to allow his/her name, profession, and address to be printed on a brochure to be distributed to a life insurance agent's customers and potential customers, as a reference for the agent.

It may be ethically proper for an attorney to share a building and a receptionist with other businesses. The basic inquiry should be whether the arrangement is such that it is clear to the public the law offices and other businesses are entirely separate and independent entities. Thus, they should not occupy the same physical space, should have separate telephones, and there should be an office directory with appropriate lines or space between listings to indicate that the entities are not connected.

An attorney may properly allow publication of newspaper or periodical articles on the new tax law (or other changes in the law) written by him/her, including a by-line or note identifying the author as a local attorney. It would be desirable to include a caution that the article is intended to be general and not advisory, and that questions about application to a reader's specific situation should be referred to the reader's legal or tax advisor.

There is nothing in the Code of Professional Responsibility which prohibits an attorney from responding, along with other selected attorneys, to an invitation to state what s/he would charge for rendering services for a government agency, so long as the factors listed in DR 2-106(B) are taken into account. It would be desirable for the attorney to indicate the number of hours of service contemplated by his/her bid, and the amount that would be charged hourly for additional time.

An advertisement in a newspaper offering to refer to responding attorneys the names of the companies seeking advice on tax and cost savings may subject an attorney who responds to disciplinary action as a violation of DR 2-101(C).

An attorney may properly appear on a television program to alert the public to the importance of recognizing legal problems and seeking legal assistance.

It would not be improper for an attorney whose office is adjacent to the office of an attorney-police and fire commission member, but with whom there is no partner, to represent a complainant in a matter which may come before the commission. Full disclosure to any relationship between the attorney and the commission member would remove any appearance of impropriety.

It is not inherently unethical for an attorney whose brother is the district attorney to represent clients in actions defended or prosecuted by the brother. However, individual situations should be carefully considered to avoid even the appearance of impropriety and if a conflict arises, the lawyer must withdraw.

A judge must disqualify him/herself when a relative appears as counsel.

It would be improper for a firm to represent a party in an action against another party represented by a firm with which a new member of the first firm had previously been employed.

A firm purchasing the physical assets of a law office in another town and operating it as a branch office may use its own name in connection with that practice. However, it may not use the name of a retiring lawyer in the community with its own as a partnership when there would be no partnership.

A law firm member who is licensed to practice law in another state but not in Wisconsin may be listed on the firm's letterhead if a note immediately follows his/her name indicating that (s)he cannot practice law in this state.

In response to an inquiry whether an attorney may properly be compensated for legal work done for a collection agency by a percentage of the agency's fee for successful debt collection, the committee referred to the following considerations.

It is improper for an attorney to sign a client's name on the reverse of a check representing proceeds of a judgment and payable to both the attorney and the client. A written power of attorney is necessary to authorize an attorney to sign his/her client's name; such authorization does not arise merely from the attorney-client relationship.

An inquiry was made whether the State Bar of Wisconsin had adopted ABA Formal Opinion 316 relating to interstate law firms.

It is improper for an attorney to conduct or contribute to a cocktail party for a judicial candidate.

A lawyer must promptly respond to a client’s request for information concerning fees and expenses.  SCR 20:1.5(b)(3). If a fee dispute arises over advanced fees that the lawyer has deposited into a trust account, the lawyer shall keep the disputed funds in trust until the dispute is resolved. If the disputed fees have already been withdrawn from the trust account, the disputed amount must be returned to the trust account until the dispute is resolved. SCR 20:1.5(h)(3). If the dispute cannot be resolved, the lawyer should consider submitting the dispute to fee arbitration. See Comment to SCR 20:1.5(h). If a lawyer has taken advantage of the alternative protection for advanced fees offered by SCR 20:1.5(g) and placed the advanced fees into their business account, the lawyer must inform the client at the outset of the representation and again at the termination of the representation that the lawyer has an obligation to submit any fee disputes to binding arbitration within 30 days of receiving written notice of the dispute. SCR 20:1.5(g)(1)(e) and (2)(d). The lawyer is then required to submit the dispute to fee arbitration. SCR 20:1.5(g)(4). A failure to submit the dispute to binding arbitration is misconduct.

The designation of his "law office address" on the formal letterhead of a state legislator who is also a member of the bar may be a violation of DR 2-102(E). The preferred practice would be to use the caption "office address."

It would be improper for a group of attorneys who were employed full-time in the legal department of a corporation to establish a letterhead holding themselves out as a partnership, with the letterhead making no reference to such corporation. Such holding out would be deceptive and misleading to the public and to other attorneys under the circumstances.

A lawyer who sought to act in the capacity as a "management consultant" in addition to his engaging in private law practice was informed that he would be bound by the Code of Professional Responsibility as to advertising and solicitation, and considering the overlap in the two that he cannot advertise his legal background in conjunction with the management activities, nor could he solicit legal work through that work. Ideally, a lawyer engaged in such occupations or professions should keep the two activities in separate locations.

In response to an inquiry concerning the sharing of office space by an attorney and a certified public accountant, the committee responded with the same language as in its reply of April 5, 1971, regarding a lawyer sharing space with a real estate broker.

In response to two inquiries concerning the disposal of clients' files upon the dissolution of a law partnership or the closing of a sole practitioner's office upon his retirement or death, there is an obligation for the attorneys or the personal representative of the estate in such instance to go through the active files and promptly notify the client of the conclusion of the partnership or law practice and indicate that the files will be available at a given location for them to reclaim, or request guidance from them as to the forwarding of the file to a new attorney.

Where a lawyer is the attorney of record for the personal representative of an estate which is responsible for the sale of real estate therein, the lawyer must accept legal fees for such sale and not attempt to charge a real estate broker's commission.

Attorneys on the staff of a legal services center activity should avoid appearing on opposite sides of a divorce action in the same manner as attorneys in private practice must avoid a conflict of interest. In addition, attorneys must avoid even the appearance of impropriety. Although a legal aid case presents a unique situation, lawyers on the staff should obey the Code of Professional Responsibility in all instances.

A lawyer may establish limited office hours in a branch office in a bank in a town nearby his main office. Such conduct is proper if the lawyer is not trying to use the bank as a business feeder, and he should use a separate room or facility in the bank building if possible. If the lawyer is an officer of the bank, he must maintain his law office in quarters separate from the bank proper.

In response to an inquiry regarding the propriety of an attorney or law firm conducting an open house for committees and personal friends upon moving into a new office suite or building, the committee concluded that this activity is covered in ABA Informal Opinion 623 which states that such open house may be held so long as invitations are limited to persons with whom the lawyer or lawyers have personal relationships, including present and past clients, members of the local bar and personal friends but not public officials. Such conduct is permitted under Canon 2, Code of Professional Responsibility.

The Ethics Committee is of the opinion that the name of an attorney who is appointed or elected as a judge must be removed from the firm partnership name and letterhead immediately.

It is proper for an attorney to appear on a national, regional or local television program concerning legal topics, in the case of educational programs for the public sponsored by or supported by bar associations, or on non-commercial programs of an educational nature produced by radio or TV broadcasting companies as a public service. The attorney may be identified by his profession. Further, he must conform to the Code of Professional Responsibility.

Under the new provision DR 2-102(B), the names of deceased or retired partners may be continued in a firm name without restriction so long as no deception results from such practice. This provision overrules the former "four year rule" on change of partnership names stated in Opinion 10-1960.

It is improper for a Minnesota law partnership to hold itself as being entitled to practice in Wisconsin where an associate of the firm, licensed to practice in this state, is the lone attorney in the Wisconsin branch office of the partnership and neither partner is admitted in Wisconsin, only in Minnesota under Canon 33.

It is improper for a law partner of a lawyer-draftsman, who is to be called as a witness, to represent the proponent of a will in a contested suit. There is one exception to this prohibition, in the instance when the lawyer-draftsman's testimony relates to the formality of execution and not to the contested issues.

It is improper for an attorney to carry on his letterhead a caption "specializing in labor and administrative law." Canon 27 specifically prohibits the listing of specialties except for the previously recognized areas of practice: admiralty law, patent and trademark law.

The Ethics Committee reaffirmed Opinion 1-1964 in holding it is improper for a lawyer to accept a "finder's fee" or "referral fee" from an outside source as compensation for placing a client's business with such firm unless he makes full disclosure to his client and obtains express permission to accept such compensation. A lawyer owes complete allegiance and fidelity to his client and cannot divide such responsibility by accepting financial inducement from an outside source.

Citing Opinion 12-1965, the committee concluded that it is improper for a lawyer-county board member to prosecute a claim against the county in behalf of a private client. In this case, there would be a conflict of interest between his duty as a public official and the duty to his prospective private client.

It is improper for an attorney to make use of a formal notice of application for judgment on a cognovit note as part of his collection procedure before commencement of suit.

Two questions were raised regarding an attorney's relation to a client who has requested that he commence a bankruptcy petition.

The inquiry is whether a lawyer may allow a lay collection agency to use his letterhead to send out demand letters on delinquent accounts. And an allied problem was whether a lawyer may deliver a collection letter duplicated on his letterhead to a client to be sent out from the client's office at the client's discretion.