Ethics Opinions
Opinions and advice of the Professional
Ethics Committee, its members and assistants, are issued pursuant to
State Bar Bylaws, Article IV, Section 5. Opinions and advice are limited
to the facts presented, are advisory only and are not binding on the
courts, the Board of Attorneys Professional Responsibility or members of
the State Bar of Wisconsin.
Members who desire an ethics opinion should address requests to:
State Bar Professional Ethics Committee, P.O. Box 7158, Madison, WI
53707-7158. The identities of parties involved in requests for opinions
will not be revealed in published opinions.
Members also can contact Keith
Kaap, State Bar ethics consultant, on the ethics hotline for
assistance. Kaap can be reached at the State Bar Center, (800) 362-8096
or (608) 257-3838 ext. 6168, on Fridays, 8 a.m. to 5 p.m. Kaap is
available other weekdays from 8 a.m. to noon at (608) 629-5721 (after
noon, leave a message, and he'll call back the next business-day
morning).
E-96-2: Attorney's Responsibilities When Client Cannot Be
Located
Question
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?
Opinion
The duties of communication and consultation and the duty to follow a
client's instructions depend upon knowing a client's whereabouts and how
to contact him or her. See SCR 20:1.2(a) and 20:1.4; Olfe v. Gordon, 93
Wis. 2d 173, 286 N.W.2d 573 (1980) (lawyer has general duty to follow
specific instructions of client). The committee agrees with ABA Informal
Opinion 1467 (Aug. 10, 1981) that a lawyer should make "reasonable
inquiry and effort" to learn a client's whereabouts. What is reasonable
will vary depending upon the circumstances. If efforts to contact the
client are unsuccessful, the lawyer may have no alternative but to seek
to withdraw from representation under SCR 20:1.16, taking "steps to the
extent reasonably practicable" to protect the client's interests. See
SCR 11.02; Sherman v. Heisler, 85 Wis. 2d 246, 270 N.W.2d 397 (1980).
Whether this requires the lawyer to file a lawsuit on behalf of the
client (and thereby satisfy the statute of limitations) may also depend
upon the circumstances. In many circumstances involving a client whose
whereabouts are unknown, such filing may be the most cautious course to
follow.
E-96-4: Use of Temporary Attorneys in Wisconsin
Question
Under what circumstances may a law firm use temporary or contract
attorneys in Wisconsin?
Opinion
The Professional Ethics committee adopts American Bar Association
Standing Committee on Ethics and Professional Responsibility Formal
Opinion 88-356.
Caveat
ABA Formal Opinion 88-356 contains references to the ABA Model Code
of Professional Responsibility and the ABA Model Rules of Professional
Conduct, which may differ in some respects with the current Rules of
Professional Conduct for Attorneys in Wisconsin. The Professional Ethics
committee agrees with the reasoning and the conclusions of ABA Formal
Opinion 88-356, and adopts it for the purpose of providing guidance to
attorneys in Wisconsin. Go
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