Vol. 77, No. 2, February
2004
Conduct Outside the Law Office
Ethics Rules Apply 24-7
As caretakers of the justice system and officers of the court,
lawyers' personal and professional bvehavior must comply with the
language and spirit of the Rules of Professional Conduct.
by Dean R. Dietrich
Dean R.
Dietrich, Marquette 1977, of Ruder, Ware & Michler
L.L.S.C., Wausau, is chair of the State Bar Professional Ethics
Committee.
Question
I know that the Rules of Professional Conduct apply when I am
practicing law. Do the rules apply to my conduct outside of the
office?
Answer
The Rules of Professional Conduct for Attorneys apply to all
Wisconsin-licensed attorneys 24 hours a day, 7 days a week. While a vast
majority of the rules relate to the practice of law, the rules also
govern the behavior of lawyers outside the direct practice of law
because the conduct of a lawyer is governed by these rules anywhere and
at any time.
The most important rule that speaks to the private conduct of a
Wisconsin lawyer is Supreme Court Rule 20:8.4, entitled "Misconduct."
This rule identifies a series of acts or conduct that are considered
"professional misconduct" under the rules and may subject the lawyer to
discipline from the Wisconsin Supreme Court. A review of potential
conduct that could be a violation shows that a lawyer may be subject to
discipline for behavior both while actively engaged in the business of
lawyering or while acting in a personal capacity or situation. SCR
20:8.4 provides that it is professional misconduct for a lawyer to:
- violate or attempt to violate any of the Rules of Professional
Conduct;
- knowingly assist or induce another person to violate the Rules of
Professional Conduct;
- violate the Rules of Professional Conduct through the acts of
another person where the lawyer exercises some degree of control or
influence over the acts of that person;
- commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness, or fitness as a lawyer;
- engage in conduct that involves dishonesty, fraud, or deceit;
- engage in conduct that involves misrepresentation by the
lawyer;
- state or imply an ability to exercise improper influence over a
government agency or a government official;
- violate a statute, supreme court rule, supreme court order, or
supreme court decision that involves the regulation of lawyer conduct;
or
- violate the attorney's oath.
The Professional Ethics Committee opinions are
available in Wisconsin Ethics Opinions, published by State Bar of
Wisconsin CLE Books, which includes the complete text of all formal,
informal, and memorandum opinions issued by the Professional Ethics
Committee since 1954, including opinions that have been withdrawn; and
the full text of the Rules of Professional Conduct for Attorneys (SCR
20). To order Wisconsin Ethics Opinions, call (800) 728-7788 or visit Marketplace
online.
As you can see, the conduct that is addressed in SCR 20:8.4 can occur
while engaged in the practice of law or while acting in a personal
capacity.
The attorney's oath often is considered as a "catch all" to address
inappropriate personal behavior of a lawyer. When we said the oath at
our swearing in, we lawyers pledged to:
- support the U.S. and Wisconsin Constitutions;
- maintain the respect due to courts of justice and judicial
officers;
- not counsel or maintain any suit or proceeding that would be unjust,
or any defense that is not honestly debatable;
- maintain the confidence and preserve the secrets of each
client;
- abstain from all offensive personality;
- advance no fact prejudicial to the honor or reputation of a party or
witness, unless required by the justice of the cause;
- never reject, for any consideration personal to the lawyer, the
cause of the defenseless or oppressed, or to delay any person's cause
out of malice.
If a lawyer, based on his or her behavior, does not act according to
the commitments contained in the attorney oath, the lawyer could be
disciplined under SCR 20:8.4. The charge of a rule violation based upon
the attorney's oath often is reserved for very serious conduct or
behavior, although the oath's ambiguous language allows for a great deal
of subjective interpretation.
Each of these instances of a potential rule violation for misconduct
applies to the lawyer's personal behavior even outside the law office or
the courtroom. Lawyers should be aware that their behavior, at any time,
is subject to scrutiny and their law license could be affected by their
personal and professional conduct.
Lawyers also are reminded of Chapter 62 of the Wisconsin Supreme
Court Rules, addressing lawyers' decorum in the courtroom. While these
rules are not subject to enforcement by the Office of Lawyer Regulation,
they are cited by judges at all levels as a basis for a court ruling and
possible sanctions. Many aspects of SCR Chapter 62 relate to litigation
procedures, but the rules also speak to lawyer conduct in a litigation
setting.
As caretakers of the justice system and officers of the court, the
behavior of lawyers, both in their professional or business capacity and
in their personal capacity, is subject to scrutiny and review by the
Wisconsin Supreme Court under the Rules of Professional Conduct for
Attorneys. Attorneys should be ever mindful that their personal and
professional behavior must be consistent with both the language and the
spirit of the Rules of Professional Conduct.
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 any
court, the Office of Lawyer Regulation, or State Bar members. Attorneys
with questions on professional ethics issues may contact the Ethics
Hotline at (800) 444-9404, ext. 6168; or (608) 250-6168 (all day
Wednesday); and (608) 629-5721 on Monday, Tuesday, Thursday, and Friday
mornings. Send written requests for Professional Ethics Committee
opinions to the Professional Ethics Committee, c/o Keith Kaap, State Bar
of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.
Wisconsin
Lawyer