COUNSELOR
SCR
20:2.1 Advisor
In
representing a client, a lawyer shall exercise independent
professional judgment and render candid advice. In
rendering advice,
a lawyer may refer not only to law but to other
considerations such
as moral, economic, social and political factors, that
may be relevant
to the client's situation.
COMMENT
Scope
of Advice
A
client is entitled to straightforward advice expressing the lawyer's honest
assessment. Legal advice often involves unpleasant facts and alternatives that
a client may be disinclined to confront. In presenting advice, a lawyer
endeavors to sustain the client's morale and may put advice in as acceptable a
form as honesty permits. However, a lawyer should not be deterred from giving
candid advice by the prospect that the advice will be unpalatable to the
client.
Advice
couched in narrowly legal terms may be of little value to a client, especially
where practical considerations, such as cost or effects on other people, are
predominant. Purely technical legal advice, therefore, can sometimes be
inadequate. It is proper for a lawyer to refer to relevant moral and ethical
considerations in giving advice. Although a lawyer is not a moral advisor as
such, moral and ethical considerations impinge upon most legal questions and
may decisively influence how the law
will be applied.
A
client may expressly or impliedly ask the lawyer for purely technical advice.
When such a request is made by a client experienced in legal matters, the
lawyer may accept it at face value. When such a request is made by a client
inexperienced in legal matters, however, the lawyer's responsibility as advisor
may include indicating that more may be involved than strictly legal
considerations.
Matters that go beyond strictly legal
questions may also be in the domain of another profession. Family matters can
involve problems within the professional competence of psychiatry, clinical
psychology or social work; business matters can involve problems within the
competence of the accounting profession or of financial specialists. Where
consultation with a professional in another field is itself something a
competent lawyer would recommend, the lawyer should make such a recommendation.
At the same time, a lawyer's advice at
its best often consists of recommending a course of action in the face of
conflicting recommendations of experts.
Offering
Advice
In
general, a lawyer is not expected to give advice until asked by the client.
However, when a lawyer knows that a client proposes a course of action that is
likely to result in substantial adverse legal consequences to the client, duty
to the client under Rule 1.4 may require that the lawyer act if the client's
course of action is related to the representation. A lawyer ordinarily has no
duty to initiate investigation of a client's affairs or to give advice that the
client has indicated is unwanted, but a
lawyer may initiate advice to a client when doing so appears to be in the
client's interest.
SCR
20:2.2 Intermediary
(a) A lawyer may act as intermediary between
clients if:
(1) the lawyer consults with each client
concerning the implications of the common representation, including the advantages
and risks involved and the effect on the attorney‑client privileges and
obtains each client's consent in writing to the common representation;
(2) the lawyer reasonably believes that the
matter can be resolved on terms compatible with the clients' best interests,
that each client will be able to make adequately informed decisions in the
matter and that there is little risk of material prejudice to the interests of
any of the clients if the contemplated resolution is unsuccessful; and
(3) the lawyer reasonably believes that the
common representation can be undertaken impartially and without improper effect
on other responsibilities the lawyer has to any of the clients.
(b) While acting as intermediary, the lawyer
shall consult with each client concerning the decisions to be made and the
considerations relevant in making them, so that each client can make adequately
informed decisions.
(c) A lawyer shall withdraw as intermediary if
any of the clients so requests, or if any of the conditions stated in paragraph
(a) is no longer satisfied. Upon withdrawal, the lawyer shall not continue to
represent any of the clients in the matter that was the subject of the
intermediation.
COMMENT
A
lawyer acts as intermediary under this rule when the lawyer represents two or
more parties with potentially conflicting interests. A key factor in defining
the relationship is whether the parties share responsibility for the lawyer's
fee, but the common representation may be inferred from other circumstances.
Because confusion can arise as to the lawyer's role where each party is not
separately represented, it is important that the lawyer make clear the
relationship.
The
rule does not apply to a lawyer acting as arbitrator or mediator between or
among parties who are not clients of the lawyer, even where the lawyer has been
appointed with the concurrence of the parties. In performing such a role the
lawyer may be subject to applicable codes of ethics, such as the Code of Ethics
for Arbitration in Commercial Disputes prepared by a joint Committee of the
American Bar Association and the American Arbitration Association.
A
lawyer acts as intermediary in seeking to establish or adjust a relationship
between clients on an amicable and mutually advantageous basis; for example, in
helping to organize a business in which two or more clients are entrepreneurs,
working out the financial reorganization of an enterprise in which two or more
clients have an interest, arranging a property distribution in settlement of an
estate or mediating a dispute between clients. The lawyer seeks to resolve
potentially conflicting interests by
developing the parties' mutual interests. The alternative can be that each
party may have to obtain separate representation, with the possibility in some
situations of incurring additional cost, complication or even litigation. Given
these and other relevant factors, all the clients may prefer that the lawyer
act as intermediary.
In
considering whether to act as intermediary between clients, a lawyer should be
mindful that if the intermediation fails the result can be additional cost,
embarrassment and recrimination. In some situations the risk of failure is so
great that intermediation is plainly impossible. For example, a lawyer cannot undertake
common representation of clients between whom contentious litigation is
imminent or who contemplate contentious negotiations. More generally, if the
relationship between the parties has
already assumed definite antagonism, the possibility that the clients'
interests can be adjusted by intermediation ordinarily is not very good.
The
appropriateness of intermediation can depend on its form. Forms of
intermediation range from informal arbitration, where each client's case is
presented by the respective client and the lawyer decides the outcome, to
mediation, to common representation where the clients' interests are
substantially though not entirely compatible. One form may be appropriate in
circumstances where another would not. Other relevant factors are whether the
lawyer subsequently will represent both parties on a continuing basis and whether the situation involves creating a
relationship between the parties or terminating one.
Confidentiality
and Privilege
A
particularly important factor in determining the appropriateness of
intermediation is the effect on client‑lawyer confidentiality and the
attorney‑client privilege. In a common representation, the lawyer is
still required both to keep each client adequately informed and to maintain confidentiality
of information relating to the representation. See Rules 1.4 and 1.6. Complying
with both requirements while acting as intermediary requires a delicate
balance. If the balance cannot be maintained, the common representation is improper. With regard to the attorney‑client
privilege, the prevailing rule is that as between commonly represented clients
the privilege does not attach. Hence, it must be assumed that if litigation
eventuates between the clients, the privilege will not protect any such
communications, and the clients should be so advised.
Since
the lawyer is required to be impartial between commonly represented clients,
intermediation is improper when that impartiality cannot be maintained. For
example, a lawyer who has represented one of the clients for a long period and
in a variety of matters might have difficulty being impartial between that
client and one to whom the lawyer has only recently been introduced.
Consultation
In
acting as intermediary between clients, the lawyer is required to consult with
the clients on the implications of doing so, and proceed only upon consent
based on such a consultation. The consultation should make clear that the
lawyer's role is not that of partisanship normally expected in other circumstances.
Paragraph
(b) is an application of the principle expressed in Rule 1.4. Where the lawyer
is intermediary, the clients ordinarily must assume greater responsibility for
decisions than when each client is independently represented.
Withdrawal
Common
representation does not diminish the rights of each client in the client‑lawyer
relationship. Each has the right to loyal and diligent representation, the
right to discharge the lawyer as stated in Rule 1.16, and the protection of
Rule 1.9 concerning obligations to a former client.
SCR
20:2.3 Evaluation for use by third
persons
(a) A lawyer may undertake an evaluation of a
matter affecting a client for the use of someone other than the client if:
(1) the lawyer reasonably believes that making
the evaluation is compatible with other aspects of the lawyer's relationship
with the client; and
(2) the client consents after consultation.
(b) Except as disclosure is required in
connection with a report of an evaluation, information relating to the
evaluation is otherwise protected by Rule 1.6.
COMMENT
Definition
An
evaluation may be performed at the client's direction but for the primary
purpose of establishing information for the benefit of third parties; for
example, an opinion concerning the title of property rendered at the behest of
a vendor for the information of a prospective purchaser, or at the behest of a
borrower for the information of a prospective lender. In some situations, the evaluation
may be required by a government agency; for example, an opinion concerning the
legality of the securities registered
for sale under the securities laws. In other instances, the evaluation may be
required by a third person, such as a purchaser of a business.
Lawyers
for the government may be called upon to give a formal opinion on the legality
of contemplated government agency action. In making such an evaluation, the
government lawyer acts at the behest of the government as the client but for
the purpose of establishing the limits of the agency's authorized activity.
Such an opinion is to be distinguished from confidential legal advice given
agency officials. The critical question is whether the opinion is to be made
public.
A
legal evaluation should be distinguished from an investigation of a person with
whom the lawyer does not have a client‑lawyer relationship. For example,
a lawyer retained by a purchaser to analyze a vendor's title to property does
not have a client‑lawyer relationship with the vendor. So also, an
investigation into a person's affairs by a government lawyer, or by special
counsel employed by the government, is not an evaluation as that term is used
in this rule. The question is whether the lawyer is retained by the person whose affairs are being examined. When
the lawyer is retained by that person, the general rules concerning loyalty to
client and preservation of confidences apply, which is not the case if the
lawyer is retained by someone else. For this reason, it is essential to
identify the person by whom the lawyer is retained. This should be made clear
not only to the person under examination, but also to others to whom the
results are to be made available.
Duty
to Third Person
When
the evaluation is intended for the information or use of a third person, a
legal duty to that person may or may not arise. That legal question is beyond
the scope of this rule. However, since such an evaluation involves a departure
from the normal client‑lawyer relationship, careful analysis of the
situation is required. The lawyer must be satisfied as a matter of professional
judgment that making the evaluation is compatible with other functions
undertaken in behalf of the client. For example, if the lawyer is acting as advocate in defending the client
against charges of fraud, it would normally be incompatible with that
responsibility for the lawyer to perform an evaluation for others concerning
the same or a related transaction. Assuming no such impediment is apparent,
however, the lawyer should advise the client of the implications of the
evaluation, particularly the lawyer's responsibilities to third persons and the
duty to disseminate the findings.
Access
to and Disclosure of Information
The
quality of an evaluation depends on the freedom and extent of the investigation
upon which it is based. Ordinarily a lawyer should have whatever latitude of
investigation seems necessary as a matter of professional judgment. Under some
circumstances, however, the terms of the evaluation may be limited. For
example, certain issues or sources may be categorically excluded, or the scope
of search may be limited by time constraints or the noncooperation of persons
having relevant information. Any such limitations
which are material to the evaluation should be described in the report. If
after a lawyer has commenced an evaluation, the client refuses to comply with
the terms upon which it was understood the evaluation was to have been made,
the lawyer's obligations are determined by law, having reference to the terms
of the client's agreement and the surrounding circumstances.
Financial
Auditors' Requests for Information
When
a question concerning the legal situation of a client arises at the instance of
the client's financial auditor and the question is referred to the lawyer, the
lawyer's response may be made in accordance with procedures recognized in the
legal profession. Such a procedure is set forth in the American Bar Association
Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for
Information, adopted in 1975.
ADVOCATE
SCR
20:3.1 Meritorious claims and
contentions
(a) In representing a client, a lawyer shall
not:
(1) knowingly advance a claim or defense that is
unwarranted under existing law, except that the lawyer may advance such claim
or defense if it can be supported by good faith argument for an extension,
modification or reversal of existing law;
(2) knowingly advance a factual position unless
there is a basis for doing so that is not frivolous; or
(3) file a suit, assert a position, conduct a
defense, delay a trial or take other action on behalf of the client when the
lawyer knows or when it is obvious that such an action would serve merely to
harass or maliciously injure another.
(b)
A lawyer for the defendant in a criminal proceeding, or the respondent
in a proceeding that could result in deprivation of liberty, may nevertheless
so defend the proceeding as to require that every element of the case be
established.
COMMENT
The
advocate has a duty to use legal procedure for the fullest benefit of the
client's cause, but also a duty not to abuse legal procedure. The law, both
procedural and substantive, establishes the limits within which an advocate may
proceed. However, the law is not always clear and never is static. Accordingly,
in determining the proper scope of advocacy, account must be taken of the law's
ambiguities and potential for change.
The
filing of an action or defense of similar action taken for a client is not frivolous
merely because the facts have not first been fully substantiated or because the
lawyer expects to develop vital evidence only by discovery. Such action is not
frivolous even though the lawyer believes that the client's position ultimately
will not prevail. The action is frivolous, however, if the client desires to
have the action taken primarily for the purpose of harassing or maliciously
injuring a person or if the lawyer is
unable either to make a good faith argument on the merits of the action taken
or to support the action taken by a good faith argument for an extension,
modification or reversal of existing law.
Committee
Comment: Paragraphs (a)(1) and (a)(3)
are now embodied in Supreme Court Rule 20.36(1)(a) and (b). Paragraph (a)(2) is
new. One of the weaknesses of the ABA Model Rule is that it appears to
establish an objective standard. In the committee's view, the subjective test
for an ethical violation under this rule should be retained in Wisconsin. Matter of Lauer, 108 Wis. 2d 746, 324 N.W.2d 432
(1982). If the objective test were adopted, the standards of Wis. Stat. sec.
814.025 could be applied to disciplinary proceedings. The conduct rising to an
ethical violation should be more egregious than conduct resulting in the
imposition of costs and fees under sec. 814.025. Cf. Sommer v. Carr, 99
Wis. 2d 789, 299 N.W.2d 856 (1981); Radlein v. Industrial Fire & Cas.
Co., 117 Wis. 2d 605, 345 N.W.2d 874 (1984).
SCR
20:3.2 Expediting litigation
A lawyer
shall make reasonable efforts to expedite litigation
consistent with the interests of the client.
COMMENT
Dilatory
practices bring the administration of justice into disrepute. Delay should not
be indulged merely for the convenience of the advocates, or for the purpose of
frustrating an opposing party's attempt to obtain rightful redress or repose.
It is not a justification that similar conduct is often tolerated by the bench
and bar. The question is whether a competent lawyer acting in good faith would
regard the course of action as having some substantial purpose other than
delay. Realizing financial or other
benefit from otherwise improper delay in litigation is not a legitimate
interest of the client.
SCR
20:3.3 Candor toward the tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a
tribunal;
(2) fail to disclose a fact to a tribunal when
disclosure is necessary to avoid assisting a criminal or fraudulent act by the
client;
(3) fail to disclose to the tribunal legal
authority in the controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be
false. If a lawyer has offered material evidence and comes to know of its
falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) apply
even if compliance requires disclosure of information otherwise protected by
Rule 1.6.
(c) A lawyer may refuse to offer evidence that
the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer which will enable
the tribunal to make an informed decision, whether or not the facts are
adverse.
COMMENT
The
advocate's task is to present the client's case with persuasive force.
Performance of that duty while maintaining confidences of the client is
qualified by the advocate's duty of candor to the tribunal. However, an
advocate does not vouch for the evidence submitted in a cause; the tribunal is
responsible for assessing its probative value.
Representations
by a Lawyer
An
advocate is responsible for pleadings and other documents prepared for
litigation, but is usually not required to have personal knowledge of matters
asserted therein, for litigation documents ordinarily present assertions by the
client, or by someone on the client's behalf, and not assertions by the lawyer.
Compare Rule 3.1. However, an assertion purporting to be on the lawyer's own
knowledge, as in an affidavit by the lawyer or in a statement in open court,
may properly be made only when the
lawyer knows the assertion is true or believes it to be true on the
basis of a reasonably diligent inquiry. There are circumstances where failure
to make a disclosure is the equivalent of an affirmative misrepresentation. The
obligation prescribed in Rule 1.2(d) not to counsel a client to commit or
assist the client in committing a fraud applies in litigation. Regarding
compliance with Rule 1.2(d), see the Comment to that rule. See also the Comment
to Rule 8.4(b).
Misleading
Legal Argument
Legal
argument based on a knowingly false representation of law constitutes
dishonesty toward the tribunal. A lawyer is not required to make a
disinterested exposition of the law, but must recognize the existence of
pertinent legal authorities. Furthermore, as stated in paragraph (a)(3), an
advocate has a duty to disclose directly adverse authority in the controlling
jurisdiction which has not been disclosed by the opposing party. The underlying
concept is that legal argument is a discussion seeking to determine the legal premises properly
applicable to the case.
False
Evidence
When
evidence that a lawyer knows to be false is provided by a person who is not the
client, the lawyer must refuse to offer it regardless of the client's
wishes.
When
false evidence is offered by the client, however, a conflict may arise between
the lawyer's duty to keep the client's revelations confidential and the duty of
candor to the court. Upon ascertaining that material evidence is false, the
lawyer should seek to persuade the client that the evidence should not be
offered or, if it has been offered, that its false character should immediately
be disclosed. If the persuasion is ineffective, the lawyer must take reasonable
remedial measures.
Except
in the defense of a criminal accused, the rule generally recognized is that, if
necessary to rectify the situation, an advocate must disclose the existence of
the client's deception to the court or to the other party. Such a disclosure
can result in grave consequences to the client, including not only a sense of
betrayal but also loss of the case and perhaps a prosecution for perjury. But
the alternative is that the lawyer cooperate in deceiving the court, thereby
subverting the truth‑finding
process which the adversary system is designed to implement. See Rule
1.2(d). Furthermore, unless it is clearly understood that the lawyer will act
upon the duty to disclose the existence of false evidence, the client can
simply reject the lawyer's advice to reveal the false evidence and insist that
the lawyer keep silent. Thus the client could in the effect coerce the lawyer
into being a party to fraud on the court.
Perjury
by a Criminal Defendant
Whether
an advocate for a criminally accused has the same duty of disclosure has been
intensely debated. While it is agreed that the lawyer should seek to persuade
the client to refrain from perjurious testimony, there has been dispute
concerning the lawyer's duty when that persuasion fails. If the confrontation
with the client occurs before trial, the lawyer ordinarily can withdraw.
Withdrawal before trial may not be possible, however, either because trial is
imminent, or because the confrontation
with the client does not take place until the trial itself, or because
no other counsel is available.
The
most difficult situation, therefore, arises in a criminal case where the
accused insists on testifying when the lawyer knows that the testimony is
perjurious. The lawyer's effort to rectify the situation can increase the
likelihood of the client's being convicted as well as opening the possibility
of a prosecution for perjury. On the other hand, if the lawyer does not
exercise control over the proof, the lawyer participates, although in a merely
passive way, in deception of the court.
Three
resolutions of this dilemma have been proposed. One is to permit the accused to
testify by a narrative without guidance through the lawyer's questioning. This
compromises both contending principles; it exempts the lawyer from the duty to
disclose false evidence but subjects the client to an implicit disclosure of
information imparted to counsel. Another suggested resolution, of relatively
recent origin, is that the advocate be entirely excused from the duty to reveal
perjury if the perjury is that of the
client. This is a coherent solution but makes the advocate a knowing instrument
of perjury.
The
other resolution of the dilemma is that the lawyer must reveal the client's
perjury if necessary to rectify the situation. A criminal accused has a right
to the assistance of an advocate, a right to testify and a right of
confidential communication with counsel. However, an accused should not have a
right to assistance of counsel in committing perjury. Furthermore, an advocate
has an obligation, not only in professional ethics but under the law as well,
to avoid implication in the commission of
perjury or other falsification of evidence. See Rule 1.2(d).
Remedial
Measures
If
perjured testimony or false evidence has been offered, the advocate's proper
course ordinarily is to remonstrate with the client confidentially. If that
fails, the advocate should seek to withdraw if that will remedy the situation.
If withdrawal will not remedy the situation or is impossible, the advocate
should make disclosure to the court. It is for the court then to determine what
should be done‑making a statement about the matter to the trier of fact,
ordering a mistrial or perhaps nothing.
If the false testimony was that of the client, the client may controvert the
lawyer's version of their communication when the lawyer discloses the situation
to the court. If there is an issue whether the client has committed perjury,
the lawyer cannot represent the client in resolution of the issue, and a
mistrial may be unavoidable. An unscrupulous client might in this way attempt
to produce a series of mistrials and thus escape prosecution. However, a second
such encounter could be construed as a
deliberate abuse of the right to counsel and as such a waiver of the right to
further representation.
Constitutional
Requirements
The
general rule‑that an advocate must disclose the existence of perjury with
respect to a material fact, even that of a client‑applies to defense
counsel in criminal cases, as well as in other instances. However, the
definition of the lawyer's ethical duty in such a situation may be qualified by
constitutional provisions for due process and the right to counsel in criminal
cases. In some jurisdictions these provisions have been construed to require
that counsel present an accused as a witness
if the accused wishes to testify, even if counsel knows the testimony
will be false. The obligation of the advocate under these rules is subordinate
to such a constitutional requirement.
Refusing
To Offer Proof Believed To Be False
Generally
speaking, a lawyer has authority to refuse to offer testimony or other proof
that the lawyer believes is untrustworthy. Offering such proof may reflect
adversely on the lawyer's ability to discriminate in the quality of evidence
and thus impair the lawyer's effectiveness as an advocate. In criminal cases,
however, a lawyer may, in some jurisdictions, be denied this authority by
constitutional requirements governing the right to counsel.
Ex
Parte Proceedings
Ordinarily,
an advocate has the limited responsibility of presenting one side of the
matters that a tribunal should consider in reaching a decision; the conflicting
position is expected to be presented by the opposing party. However, in an ex
parte proceeding, such as an application for a temporary restraining order,
there is no balance of presentation by opposing advocates. The object of an ex
parte proceeding is nevertheless to yield a substantially just result. The
judge has an affirmative responsibility
to accord the absent party just consideration. The lawyer for the represented
party has the correlative duty to make disclosures of material facts known to
the lawyer and that the lawyer reasonably believes are necessary to an informed
decision.
Committee
Comment: The committee does not limit
the rule under paragraph (a)(1) and (2) to instances involving
"material" facts. Under paragraph (b), the duties under this rule do
not terminate at the conclusion of the proceeding.
SCR
20:3.4 Fairness to opposing party and
counsel
A lawyer
shall not:
(a) unlawfully obstruct another party's access
to evidence or unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value. A lawyer shall not counsel or
assist another person to do any such act;
(b) falsify evidence, counsel or assist a
witness to testify falsely, or offer an inducement to a witness that is
prohibited by law;
(c) knowingly disobey an obligation under the
rules of a tribunal except for an open refusal based on an assertion that no
valid obligation exists;
(d) in pretrial procedure, make a frivolous
discovery request or fail to make reasonably diligent effort to comply with a
legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the
lawyer does not reasonably believe is relevant or that will not be supported by
admissible evidence, assert personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion as to the justness of a
cause, the credibility of a witness, the culpability of a civil litigant or the
guilt or innocence of an accused; or
(f) request a person other than a client to
refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or
other agent of a client; and
(2) the lawyer reasonably believes that the
person's interests will not be adversely affected by refraining from giving
such information.
COMMENT
The
procedure of the adversary system contemplates that the evidence in a case is
to be marshalled competitively by the contending parties. Fair competition in
the adversary system is secured by prohibitions against destruction or
concealment of evidence, improperly influencing witnesses, obstructive tactics
in discovery procedure, and the like.
Documents
and other items of evidence are often essential to establish a claim or
defense. Subject to evidentiary privileges, the right of an opposing party,
including the government, to obtain evidence through discovery or subpoena is
an important procedural right. The exercise of that right can be frustrated if
relevant material is altered, concealed or destroyed. Applicable law in many
jurisdictions makes it an offense to destroy material for the purpose of
impairing its availability in a pending
proceeding or one whose commencement can be foreseen. Falsifying
evidence is also generally a criminal offense. Paragraph (a) applies to
evidentiary material generally, including computerized information.
With
regard to paragraph (b), it is not improper to pay a witness's expenses or to
compensate an expert witness on terms permitted by law. The common law rule in
most jurisdictions is that it is improper to pay an occurrence witness any fee
for testifying and that it is improper to pay an expert witness a contingent
fee.
Paragraph
(f) permits a lawyer to advise employees of a client to refrain from giving
information to another party, for the employees may identify their interests
with those of the client. See also Rule 4.2.
SCR
20:3.5 Impartiality and decorum of the
tribunal
A lawyer
shall not:
(a) seek to influence a judge, juror,
prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person
except as permitted by law or for scheduling purposes if permitted by the
court. If communication between a lawyer and judge has occurred in order to
schedule a matter, the lawyer involved shall promptly notify the lawyer for the
other party or the other party, if unrepresented, of such communication; or
(c) engage in conduct intended to disrupt a
tribunal.
COMMENT
Many
forms of improper influence upon a tribunal are proscribed by criminal law.
Others are specified in the ABA Model Code of Judicial Conduct, with which an
advocate should be familiar. A lawyer is required to avoid contributing to a
violation of such provisions.
The
advocate's function is to present evidence and argument so that the cause may
be decided according to law. Refraining from abusive or obstreperous conduct is
a corollary of the advocate's right to speak on behalf of litigants. A lawyer
may stand firm against abuse by a judge but should avoid reciprocation; the
judge's default is no justification for similar dereliction by an advocate. An
advocate can present the cause, protect the record for subsequent review and
preserve professional integrity by patient firmness no less effectively than by
belligerence or theatrics.
SCR
20:3.6 Trial publicity
(a) A lawyer who is participating or has
participated in the investigation or litigation of a matter shall not make an
extrajudicial statement that a reasonable person would expect to be
disseminated by means of public communication if the lawyer knows or reasonably
should know that it will have a substantial likelihood of materially
prejudicing an adjudicative proceeding in the matter.
(b) A statement referred to in paragraph (a)
ordinarily is likely to have such an effect when it refers to a civil matter
triable to a jury, a criminal matter, or any other proceeding that could result
in deprivation of liberty, and the statement relates to:
(1) the character, credibility, reputation or
criminal record of a party, suspect in a criminal investigation or witness, or
the identity of a witness, or the expected testimony of a party or
witness;
(2) in a criminal case or proceeding that could
result in deprivation of liberty, the possibility of a plea of guilty to the
offense or the existence or contents of any confession, admission, or statement
given by a defendant or suspect or that person's refusal or failure to make a
statement;
(3) the performance or results of any
examination or test or the refusal or failure of a person to submit to an
examination or test, or the identity or nature of physical evidence expected to
be presented;
(4) any opinion as to the guilt or innocence of
a defendant or suspect in a criminal case or proceeding that could result in
deprivation of liberty;
(5) information the lawyer knows or reasonably
should know is likely to be inadmissible as evidence in a trial and would if
disclosed create a substantial risk of prejudicing an impartial trial; or
(6) the fact that a defendant has been charged
with a crime, unless there is included therein a statement explaining that the
charge is merely an accusation and that the defendant is presumed innocent
until and unless proven guilty.
(c) Notwithstanding paragraphs (a) and (b)(1‑5), a lawyer may state all of the following:
(1) the claim; offense or defense involved and,
except when prohibited by law, the identity of the persons involved;
(2) the information contained in a public
record;
(3) that an investigation of the matter is in
progress;
(4) the scheduling or result of any step in
litigation;
(5) a request for assistance in obtaining
evidence and information necessary thereto;
(6) a warning of danger concerning the behavior
of a person involved, when there is reason to believe that there exists the
likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to
subparagraphs (1) through (6):
(i) the identity, residence, occupation and
family status of the accused;
(ii) if the accused has not been apprehended,
information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting
officers or agencies and the length of the investigation.
(d) Notwithstanding paragraph (a), a lawyer may
make a statement that a reasonable lawyer would believe is required to protect
a client from the substantial likelihood of undue prejudicial effect of recent
publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph
shall be limited to information that is necessary to mitigate the recent
adverse publicity.
(e) A lawyer
associated in a firm or government agency with a lawyer subject to paragraph
(a) shall not make a statement that is prohibited by paragraph (a).
COMMENT
It is difficult to strike a
balance between protecting the right to a fair trial and safeguarding the right
of free expression. Preserving the right to a fair trial necessarily entails
some curtailment of the information that may be disseminated about a party
prior to trial, particularly where trial by jury is involved. If there were no
such limits, the result would be the practical nullification of the protective
effect of the rules of forensic decorum and the exclusionary rules of evidence.
On the other hand, there are vital social interests served by the free
dissemination of information about events having legal consequences and about
legal proceedings themselves. The public has a right to know about threats to
its safety and measures aimed at assuring its security. It also has a
legitimate interest in the conduct of judicial proceedings, particularly in
matters of general public concern. Furthermore, the subject matter of legal
proceedings is often of direct significance in debate and deliberation over
questions of public policy.
Special rules of
confidentiality may validly govern proceedings in juvenile, domestic relations
and mental disability proceedings, and perhaps other types of litigation. Rule
3.4(c) requires compliance with such rules.
The Rule sets forth a basic
general prohibition against a lawyer's making statements that the lawyer knows
or should know will have a substantial likelihood of materially prejudicing an
adjudicative proceeding. Recognizing
that the public value of informed commentary is great and the likelihood of
prejudice to a proceeding by the commentary of a lawyer who is not involved in
the proceeding is small, the rule applies only to lawyers who are or who have
been involved in the investigation or litigation of a case and their associates.
Paragraph (b) lists certain
subjects that are more likely than not to have a material prejudicial effect on
a proceeding, particularly when they refer to a civil matter triable to a jury,
a criminal matter, or any other proceeding that could result in deprivation of
liberty.
Paragraph (c) identifies
specific matters about which a lawyer's statements would not ordinarily be
considered to present a substantial likelihood of material prejudice and should
not in any event be considered prohibited by the general prohibition of
paragraph (a). Paragraph (c) is not
intended to be an exhaustive listing of the subjects upon which a lawyer may
make a statement, but statements on other matters may be subject to paragraph (a).
Another relevant factor in
determining prejudice is the nature of the proceeding involved. Criminal jury trials will be most sensitive
to extrajudicial speech. Civil trials
may be less sensitive. Non-jury
hearings and arbitration proceedings may be even less affected. The Rule will still place limitations on
prejudicial comments in these cases, but the likelihood of prejudice may be
different depending on the type of proceeding.
Finally, extrajudicial
statements that might otherwise raise a question under this Rule may be
permissible when they are made in response to statements made publicly by
another party, another party's lawyer, or third persons, where a reasonable
lawyer would believe a public response is required in order to avoid prejudice
to the lawyer's client. When
prejudicial statements have been publicly made by others, responsive statements
may have the salutary effect of lessening any resulting adverse impact on the
adjudicative proceeding. Such
responsive statements should be limited to contain only such information as is
necessary to mitigate undue prejudice created by the statements made by
others.
Committee
Comment: The committee has substituted
the words "deprivation of liberty" for the word
"incarceration."
Supreme Court Comment,
1999: The harm to be avoided in
paragraph (e) is not the "substantial undue prejudicial effect" of
publicity set forth in the ABA Model Rule 3.6(c) but, consistent with paragraph
(a), the "substantial likelihood of undue prejudicial effect."
SCR
20:3.7 Lawyer as witness
(a) A lawyer shall not act as advocate at a
trial in which the lawyer is likely to be a necessary witness except where:
(1)
the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and
value of legal services rendered in the case; or
(3) disqualification of the lawyer would work
substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in
which another lawyer in the lawyer's firm is likely to be called as a witness
unless precluded from doing so by Rule 1.7 or Rule 1.9.
COMMENT
Combining
the roles of advocate and witness can prejudice the opposing party and can
involve a conflict of interest between the lawyer and client.
The
opposing party has proper objection where the combination of roles may
prejudice that party's rights in the litigation. A witness is required to
testify on the basis of personal knowledge, while an advocate is expected to
explain and comment on evidence given by others. It may not be clear whether a
statement by an advocate‑witness should be taken as proof or as an
analysis of the proof.
Paragraph
(a)(1) recognizes that if the testimony will be uncontested, the ambiguities in
the dual role are purely theoretical. Paragraph (a)(2) recognizes that where
the testimony concerns the extent and value of legal services rendered in the
action in which the testimony is offered, permitting the lawyers to testify
avoids the need for a second trial with new counsel to resolve that issue.
Moreover, in such a situation the judge has first hand knowledge of the matter
in issue; hence, there is less
dependence on the adversary process to test the credibility of the
testimony.
Apart
from these two exceptions, paragraph (a)(3) recognizes that a balancing is
required between the interests of the client and those of the opposing party.
Whether the opposing party is likely to suffer prejudice depends on the nature
of the case, the importance and probable tenor of the lawyer's testimony, and
the probability that the lawyer's testimony will conflict with that of other
witnesses. Even if there is risk of such prejudice, in determining whether the
lawyer should be disqualified due
regard must be given to the effect of disqualification on the lawyer's client.
It is relevant that one or both parties could reasonably foresee that the
lawyer would probably be a witness. The principle of imputed disqualification
stated in Rule 1.10 has no application to this aspect of the problem.
Whether
the combination of roles involves an improper conflict of interest with respect
to the client is determined by Rule 1.7 or 1.9. For example, if there is likely
to be substantial conflict between the testimony of the client and that of the
lawyer or a member of the lawyer's firm, the representation is improper. The
problem can arise whether the lawyer is called as a witness on behalf of the
client or is called by the opposing party. Determining whether or not such a
conflict exists is primarily the
responsibility of the lawyer involved. See Comment to Rule 1.7. If a lawyer who
is a member of a firm may not act as both advocate and witness by reason of
conflict of interest, Rule 1.10 disqualifies the firm also.
SCR
20:3.8 Special responsibilities of a
prosecutor
The
prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the
prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the
accused has been advised of the right to, and the procedure for obtaining,
counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented
accused a waiver of important pretrial rights, such as the right to a
preliminary hearing; (d)
make timely disclosure to the defense of all evidence or information known
to the prosecutor that tends to negate the guilt of the accused or mitigates
the offense, and, in connection with sentencing, disclose to the defense and to
the tribunal all unprivileged mitigating information known to the prosecutor,
except when the prosecutor is relieved of this responsibility by a protective
order of the tribunal; and
(e) exercise reasonable care to prevent
investigators, law enforcement personnel, employees or other persons assisting
or associated with the prosecutor in a criminal case from making an
extrajudicial statement that the prosecutor would be prohibited from making
under Rule 3.6.
COMMENT
A
prosecutor has the responsibility of a minister of justice and not simply that
of an advocate. This responsibility carries with it specific obligations to see
that the defendant is accorded procedural justice and that guilt is decided
upon the basis of sufficient evidence. Precisely how far the prosecutor is
required to go in this direction is a matter of debate and varies in different
jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal
Justice Relating to Prosecution
Function, which in turn are the product of prolonged and careful
deliberation by lawyers experienced in both criminal prosecution and defense.
See also Rule 3.3(d), governing ex parte proceedings, among which grand jury
proceedings are included. Applicable law may require other measures by the
prosecutor and knowing disregard of those obligations or a systematic abuse of
prosecutorial discretion could constitute a violation of Rule 8.4.
Paragraph
(c) does not apply to an accused appearing pro se with the approval of the
tribunal. Nor does it forbid the lawful questioning of a suspect who has
knowingly waived the rights to counsel and silence.
The
exception in paragraph (d) recognizes that a prosecutor may seek an appropriate
protective order from the tribunal if disclosure of information to the defense
could result in substantial harm to an individual or to the public interest.
SCR 20:3.9 Advocate in nonadjudicative proceedings
A lawyer
representing a client before a legislative or administrative tribunal in a
nonadjudicative proceeding shall disclose that the appearance is in a
representative capacity and shall conform to the provisions of Rules 3.3(a)
through (c), 3.4(a) through (c), and 3.5.
COMMENT
In
representation before bodies such as legislatures, municipal councils, and
executive and administrative agencies acting in a rule‑making or policy‑making
capacity, lawyers present facts, formulate issues and advance argument in the
matters under consideration. The decision‑making body, like a court,
should be able to rely on the integrity of the submissions made to it. A lawyer
appearing before such a body should deal with the tribunal honestly and in
conformity with applicable rules of
procedure.
Lawyers
have no exclusive right to appear before nonadjudicative bodies, as they do
before a court. The requirements of this rule therefore may subject lawyers to
regulations inapplicable to advocates who are not lawyers. However,
legislatures and administrative agencies have a right to expect lawyers to deal
with them as they deal with courts.
This rule does not apply to
representation of a client in a negotiation or other bilateral transaction with
a governmental agency; representation in such a transaction is governed by
Rules 4.1 through 4.4.
SCR
20:3.10 Threatening criminal
prosecution
A lawyer
shall not present, participate in presenting or threaten to present criminal charges
solely to obtain an advantage in a civil matter.
TRANSACTIONS
WITH PERSONS OTHER THAN CLIENTS
SCR
20:4.1 Truthfulness in statements to
others
In the
course of representing a client a lawyer shall not knowingly:
(a) make a false statement of a material fact or
law to a third person; or
(b) fail to disclose a material fact to a third
person when disclosure is necessary to avoid assisting a criminal or fraudulent
act by a client, unless disclosure is prohibited by Rule 1.6.
COMMENT
Misrepresentation
A
lawyer is required to be truthful when dealing with others on a client's
behalf, but generally has no affirmative duty to inform an opposing party of
relevant facts. A misrepresentation can occur if the lawyer incorporates or
affirms a statement of another person that the lawyer knows is false.
Misrepresentations can also occur by failure to act.
Statements
of Fact
This
rule refers to statements of fact. Whether a particular statement should be
regarded as one of fact can depend on the circumstances. Under generally
accepted conventions in negotiation, certain types of statements ordinarily are
not taken as statements of material fact. Estimates of price or value placed on
the subject of a transaction and a party's intentions as to an acceptable
settlement of a claim are in this category, and so is the existence of an
undisclosed principal except where nondisclosure of the principal would
constitute fraud.
Fraud
by Client
Paragraph
(b) recognizes that substantive law may require a lawyer to disclose certain
information to avoid being deemed to have assisted the client's crime or fraud.
The requirement of disclosure created by this paragraph is, however, subject to
the obligations created by Rule 1.6.
SCR
20:4.2 Communication with person
represented by counsel
In
representing a client, a lawyer shall not communicate about the subject of the
representation with a party the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer or
is authorized by law to do so.
COMMENT
This
rule does not prohibit communication with a party, or an employee or agent of a
party, concerning matters outside the representation. For example, the
existence of a controversy between a government agency and a private party, or
between two organizations, does not prohibit a lawyer for either from
communicating with nonlawyer representatives of the other regarding a separate
matter. Also, parties to a matter may communicate directly with each other and
a lawyer having independent justification
for communicating with the other party is permitted to do so.
Communications authorized by law include, for example, the right of a party to
a controversy with a government agency to speak with government officials about
the matter.
In
the case of an organization, this rule prohibits communications by a lawyer for
one party concerning the matter in representation with persons having a
managerial responsibility on behalf of the organization, and with any other
person whose act or omission in connection with that matter may be imputed to
the organization for purposes of civil or criminal liability or whose statement
may constitute and admission on the part of the organization. If an agent or
employee of the organization is
represented in the matter by his or her own counsel, the consent by that
counsel to a communication will be sufficient for purposes of this rule.
Compare Rule 3.4(f). This rule also covers any person, whether or not a party
to a formal proceeding, who is represented by counsel concerning the matter in
question.
SCR
20:4.3 Dealing with unrepresented
person
In
dealing on behalf of a client with a person who is not represented by counsel,
a lawyer shall not state or imply that the lawyer is disinterested. When the
lawyer knows or reasonably should know that the unrepresented person
misunderstands the lawyer's role in the matter, the lawyer shall make
reasonable efforts to correct the misunderstanding.
COMMENT
An
unrepresented person, particularly one not experienced in dealing with legal
matters, might assume that a lawyer is a disinterested in loyalties or is a
disinterested authority on the law even when the lawyer represents a client.
During the course of a lawyer's representation of a client, the lawyer should
not give advice to an unrepresented person other than the advice to obtain
counsel.
SCR
20:4.4 Respect for rights of third
persons
In
representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person, or use
methods of obtaining evidence that violate the legal rights of such a person.
COMMENT
Responsibility
to a client requires a lawyer to subordinate the interests of others to those
of the client, but that responsibility does not imply that a lawyer may
disregard the rights of third persons. It is impractical to catalogue all such
rights, but they include legal restrictions on methods of obtaining evidence
from third persons.
LAW
FIRMS AND ASSOCIATIONS
SCR
20:5.1 Responsibilities of a partner or
supervisory lawyer
(a) A partner in a law firm shall make
reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that all lawyers in the firm conform to the Rules of
Professional Conduct.
(b) A lawyer having direct supervisory authority
over another lawyer shall make reasonable efforts to ensure that the other lawyer
conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another
lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the
specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm in
which the other lawyer practices, or has direct supervisory authority over the
other lawyer, and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action.
COMMENT
Paragraphs
(a) and (b) refer to lawyers who have supervisory authority over the
professional work of a firm or legal department of a government agency. This
includes members of a partnership and the shareholders in a law firm organized
as a professional corporation; lawyers having supervisory authority in the law
department of an enterprise or government agency; and lawyers who have
intermediate managerial responsibilities in a firm.
The
measures required to fulfill the responsibility prescribed in paragraphs (a)
and (b) can depend on the firm's structure and the nature of its practice. In a
small firm, informal supervision and occasional admonition ordinarily might be
sufficient. In a large firm, or in practice situations in which intensely
difficult ethical problems frequently arise, more elaborate procedures may be
necessary. Some firms, for example, have a procedure whereby junior lawyers can
make confidential referral of ethical
problems directly to a designated senior partner or special committee. See Rule
5.2. Firms, whether large or small, may also rely on continuing legal education
in professional ethics. In any event, the ethical atmosphere of a firm can
influence the conduct of all its members and a lawyer having authority over the
work of another may not assume that the subordinate lawyer will inevitably
conform to the rules.
Paragraph
(c)(1) expresses a general principle of responsibility for acts of another. See
also Rule 8.4(a).
Paragraph
(c)(2) defines the duty of a lawyer having direct supervisory authority over
performance of specific legal work by another lawyer. Whether a lawyer has such
supervisory authority in particular circumstances is a question of fact.
Partners of a private firm have at least indirect responsibility for all work
being done by the firm, while a partner in charge of a particular matter
ordinarily has direct authority over other firm lawyers engaged in the matter.
Appropriate remedial action by a
partner would depend on the immediacy of the partner's involvement and
the seriousness of the misconduct. The supervisor is required to intervene to
prevent avoidable consequences of misconduct if the supervisor knows that the
misconduct occurred. Thus, if a supervising lawyer knows that a subordinate
misrepresented a matter to an opposing party in negotiation, the supervisor as
well as the subordinate has a duty to correct the resulting
misapprehension.
Professional
misconduct by a lawyer under supervision could reveal a violation of paragraph
(b) on the part of the supervisory lawyer even though it does not entail a
violation of paragraph (c) because there was no direction, ratification or
knowledge of the violation.
Apart
from this rule and Rule 8.4(a), a lawyer does not have disciplinary liability
for the conduct of a partner, associate or subordinate. Whether a lawyer may be
liable civilly or criminally for another lawyer's conduct is a question of law
beyond the scope of these rules.
SCR
20:5.2 Responsibilities of a subordinate
lawyer
(a) A lawyer is bound by the Rules of
Professional Conduct notwithstanding that the lawyer acted at the direction of
another person.
(b) A subordinate lawyer does not violate the
Rules of Professional Conduct if that lawyer acts in accordance with a
supervisory lawyer's reasonable resolution of an arguable question of
professional duty.
COMMENT
Although
a lawyer is not relieved of responsibility for a violation by the fact that the
lawyer acted at the direction of a supervisor, that fact may be relevant in
determining whether a lawyer had the knowledge required to render conduct a
violation of the rules. For example, if a subordinate filed a frivolous
pleading at the direction of a supervisor, the subordinate would not be guilty
of a professional violation unless the subordinate knew of the document's
frivolous character.
When
lawyers in a supervisor‑subordinate relationship encounter a matter
involving professional judgment as to ethical duty, the supervisor may assume
responsibility for making the judgment. Otherwise a consistent course of action
or position could not be taken. If the question can reasonably be answered only
one way, the duty of both lawyers is clear and they are equally responsible for
fulfilling it. However, if the question is reasonably arguable, someone has to
decide upon the course of action. That
authority ordinarily reposes in the supervisor, and a subordinate may be guided
accordingly. For example, if a question arises whether the interests of two
clients conflict under Rule 1.7, the supervisor's reasonable resolution of the
question should protect the subordinate professionally if the resolution is
subsequently challenged.
SCR
20:5.3 Responsibilities regarding
nonlawyer assistants
With
respect to a nonlawyer employed or retained by or associated with a
lawyer:
(a) A partner in a law firm shall make
reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that the person's conduct is compatible with the
professional obligations of the lawyer;
(b) A lawyer having direct supervisory authority
over the nonlawyer shall make reasonable efforts to ensure that the person's
conduct is compatible with the professional obligations of the lawyer; and
(c) A lawyer shall be responsible for conduct of
such a person that would be a violation of the Rules of Professional Conduct if
engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of
the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm in
which the person is employed, or has direct supervisory authority over the
person, and knows of the conduct at a time when its consequences can be avoided
or mitigated but fails to take reasonable remedial action.
COMMENT
Lawyers
generally employ assistants in their practice, including secretaries,
investigators, law student interns, and paraprofessionals. Such assistants,
whether employees or independent contractors, act for the lawyer in rendition
of the lawyer's professional services. A lawyer should give such assistants
appropriate instruction and supervision concerning the ethical aspects of their
employment, particularly regarding the obligation not to disclose information
relating to representation of the
client, and should be responsible for their work product. The measures employed
in supervising nonlawyers should take account of the fact that they do not have
legal training and are not subject to professional discipline.
SCR
20:5.4 Professional independence of a
lawyer
(a) A lawyer or law firm shall not share legal
fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's
firm, partner, or associate may provide for the payment of money, over a
reasonable period of time after the lawyer's death, to the lawyer's estate or
to one or more specified persons;
(2) a lawyer who purchases the practice of a
deceased, disabled or disappeared lawyer may, pursuant to the provisions of SCR
20:1.17, pay to the estate or other representatives of that lawyer the agreed
upon purchase price; and
(3) a lawyer or law firm may include nonlawyer employees
in a compensation or retirement plan, even though the plan is based in whole or
in part on a profit‑sharing arrangement.
(b) A lawyer shall not form a partnership with a
nonlawyer if any of the activities of the partnership consist of the practice
of law.
(c) A lawyer shall not permit a person who
recommends, employs, or pays the lawyer to render legal services for another to
direct or regulate the lawyer's professional judgment in rendering such legal
services.
(d) A lawyer shall not practice with or in the
form of a professional corporation, association or limited liability
organization authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein,
except that a fiduciary representative of the estate of a lawyer may hold the
stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or
officer thereof; or
(3) a nonlawyer has the right to direct or
control the professional judgment of a lawyer.
COMMENT
The
provisions of this rule express traditional limitations on sharing fees. These
limitations are to protect the lawyer's professional independence of judgment.
Where someone other than the client pays the lawyer's fee or salary, or
recommends employment of the lawyer, that arrangement does not modify the
lawyer's obligation to the client. As stated in paragraph (c), such
arrangements should not interfere with the lawyer's professional judgment.
SCR
20:5.5 Unauthorized practice of
law
A lawyer
shall not:
(a) practice law in a jurisdiction where doing
so violates the regulation of the legal profession in that jurisdiction; or
(b) assist a person who is not a member of the
bar in the performance of activity that constitutes the unauthorized practice
of law.
COMMENT
The
definition of the practice of law is established by law and varies from one
jurisdiction to another. Whatever the definition, limiting the practice of law
to members of the bar protects the public against rendition of legal services
by unqualified persons. Paragraph (b) does not prohibit a lawyer from employing
the services of paraprofessionals and delegating functions to them, so long as
the lawyer supervises the delegated work and retains responsibility for their work.
See Rule 5.3. Likewise, it does not
prohibit lawyers from providing professional advice and instruction to
nonlawyers whose employment requires knowledge of law; for example, claims
adjusters, employees of financial or commercial institutions, social workers,
accountants and persons employed in government agencies. In addition, a lawyer
may counsel nonlawyers who wish to proceed pro se.
SCR
20:5.6 Restrictions on right to
practice
A lawyer
shall not participate in offering or making:
(a) a partnership or employment agreement that
restricts the rights of a lawyer to practice after termination of the
relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the
lawyer's right to practice is part of the settlement of a controversy between
private parties.
COMMENT
An
agreement restricting the right of partners or associates to practice after
leaving a firm not only limits their professional autonomy but also limits the
freedom of clients to choose a lawyer. Paragraph (a) prohibits such agreements
except for restrictions incident to provisions concerning retirement benefits
for service with the firm.
Paragraph
(b) prohibits a lawyer from agreeing not to represent other persons in
connection with settling a claim on behalf of a client.
This
rule does not apply to prohibit restrictions that may be included in the terms
of the sale of a law practice pursuant to SCR 20:1.17.
SCR 20:5.7
Limited liability legal practice.
(a)(1) A lawyer
may be a member of a law firm that is organized as a limited liability
organization solely to render professional legal services under the laws of
this state, including chs. 178 and 183 and subch XIX of ch. 180. The lawyer may practice in or as a limited
liability organization if the lawyer is otherwise licensed to practice law in
this state and the organization is registered under sub. (b).
(2) Nothing in this rule or the laws under which
the lawyer or law firm is organized shall relieve a lawyer from personal
liability for any acts, errors or omissions of the lawyer arising out of the
performance of professional services.
(b) A lawyer or law firm that is organized as a
limited liability organization shall file an annual registration with the state
bar of Wisconsin in a form and with a filing fee that shall be determined by
the state bar. The annual registration
shall be signed by a lawyer who is licensed to practice law in this state and
who holds an ownership interest in the organization seeking to register under
this rule. The annual registration
shall include all of the following.
(1) The name and address of the organization.
(2) The names, residence addresses, states or
jurisdictions where licensed to practice law, and attorney registration numbers
of the lawyers in the organization and their ownership interest in the
organization.
(3) A representation that at the time of the
filing each lawyer in the organization is in good standing in this state or, if
licensed to practice law elsewhere, in the states or jurisdictions in which he
or she is licensed.
(4) A certificate of insurance issued by an
insurance carrier certifying that it has issued to the organization a
professional liability policy to the organization as provided in sub. (bm).
(5) Such other information as may be required
from time to time by the state bar of Wisconsin.
(bm) The professional liability policy under sub.
(b)(4) shall identify the name of the professional liability carrier, the
policy number, the expiration date and the limits and deductible. Such professional liability insurance shall
provide not less than the following limits of liability:
(1) For a firm composed of 1 to 3 lawyers,
$100,000 of combined indemnity and defense cost coverage per claim, with a
$300,000 aggregate combined indemnity and defense cost coverage amount per
policy period.
(2) For a firm composed of 4 to 6 lawyers,
$250,000 of combined indemnity and defense cost coverage per claim, with
$750,000 aggregate combined indemnity and defense cost coverage amount per
policy period.
(3) For a firm composed of 7 to 14 lawyers,
$500,000 of combined indemnity and defense cost coverage per claim, with
$1,000,000 aggregate combined indemnity and defense cost coverage amount per
policy period.
(4) For a firm composed of 15 to 30 lawyers,
$1,000,000 of combined indemnity and defense cost coverage per claim, with
$2,000,000 aggregate combined indemnity and defense cost coverage amount per
policy period.
(5) For a firm composed of 31 to 50 lawyers,
$4,000,000 of combined indemnity and defense cost coverage per claim, with
$4,000,000 aggregate combined indemnity and defense cost coverage amount per
policy period.
(6) For a firm composed of 51 or more lawyers,
$10,000,000 of combined indemnity and defense cost coverage per claim, with
$10,000,000 aggregate combined indemnity and defense cost coverage amount per
policy period.
(c) Nothing in this rule or the laws under which
a lawyer or law firm is organized shall diminish a lawyer's or law firm's
obligations or responsibilities under any provisions of this chapter.
(d) A law firm that is organized as a limited
liability organization under the laws of any other state or jurisdiction or of
the United States solely for the purpose of rendering professional legal
services that is authorized to do business in Wisconsin and that has a least
one lawyer licensed to practice law in Wisconsin may register under this rule
by complying with the provisions of sub. (b).
(e) A lawyer or law firm that is organized as a
limited liability organization shall do all of the following:
(1) Include a written designation of the limited
liability structure as part of its name.
(2) Provide to clients and potential clients in
writing a plain-English summary of the features of the limited liability law
under which it is organized and the applicable provisions of this chapter.
PUBLIC
SERVICE
SCR
20:6.1 Pro bono publico service
A lawyer
should render public interest legal service. A lawyer may discharge this
responsibility by providing professional services at no fee or a reduced fee to
persons of limited means or to public service or charitable groups or
organizations, by service in activities for improving the law, the legal system
or the legal profession, and by financial support for organizations that
provide legal services to persons of limited means.
COMMENT
The
ABA House of Delegates has formally acknowledged "the basic responsibility
of each lawyer engaged in the practice of law to provide public interest legal
services" without fee, or at a substantially reduced fee, in one or more
of the following areas: poverty law, civil rights law, public rights law,
charitable organization representation and the administration of justice. This
rule expresses that policy but is not intended to be enforced through
disciplinary process.
The
rights and responsibilities of individuals and organizations in the United
States are increasingly defined in legal terms. As a consequence, legal
assistance in coping with the web of statutes, rules and regulations is
imperative for persons of modest and limited means, as well as for the
relatively well‑to‑do.
The
basic responsibility for providing legal services for those unable to pay ultimately
rests upon the individual lawyer, and personal involvement in the problems of
the disadvantaged can be one of the most rewarding experiences in the life of a
lawyer. Every lawyer, regardless of professional prominence or professional
workload, should find time to participate in or otherwise support the provision
of legal services to the disadvantaged. The provision of free legal services to
those unable to pay reasonable fees
continues to be an obligation of each lawyer as well as the profession generally,
but the efforts of individual lawyers are often not enough to meet the need.
Thus, it has been necessary for the profession and government to institute
additional programs to provide legal services. Accordingly, legal aid offices,
lawyer referral services and other related programs have been developed, and
others will be developed by the profession and government. Every lawyer should
support all proper efforts to meet this
need for legal services.
SCR
20:6.2 Accepting appointments
A lawyer
shall not seek to avoid appointment by a tribunal to represent a person except
for good cause, such as:
(a) representing the client is likely to result
in violation of the Rules of Professional Conduct or other law;
(b) representing the client is likely to result
in an unreasonable financial burden on the lawyer; or
(c) the client or the cause is so repugnant to
the lawyer as to be likely to impair the client‑lawyer relationship or
the lawyer's ability to represent the client.
COMMENT
A
lawyer ordinarily is not obliged to accept a client whose character or cause
the lawyer regards as repugnant. The lawyer's freedom to select clients is,
however, qualified. All lawyers have a responsibility to assist in providing
pro bono publico service. See Rule 6.1. An individual lawyer fulfills this
responsibility by accepting a fair share of unpopular matters or indigent or
unpopular clients. A lawyer may also be subject to appointment by a court to
serve unpopular clients or persons unable
to afford legal services.
Appointed
Counsel
For
good cause a lawyer may seek to decline an appointment to represent a person
who cannot afford to retain counsel or whose cause is unpopular. Good cause
exists if the lawyer could not handle the matter competently, see Rule 1.1, or
if undertaking the representation would result in an improper conflict of
interest, for example, when the client or the cause is so repugnant to the
lawyer as to be likely to impair the client‑lawyer relationship or the
lawyer's ability to represent the client. A
lawyer may also seek to decline an appointment if acceptance would be
unreasonably burdensome, for example, when it would impose a financial
sacrifice so great as to be unjust.
An
appointed lawyer has the same obligations to the client as retained counsel,
including the obligations of loyalty and confidentiality, and is subject to the
same limitations on the client‑lawyer relationship, such as the
obligation to refrain from assisting the client in violation of the rules.
SCR 20:6.3 Membership in legal services organization
A lawyer
may serve as a director, officer or member of a legal services organization,
apart from the law firm in which the lawyer practices, notwithstanding that the
organization serves persons having interests adverse to a client of the lawyer.
The lawyer shall not knowingly participate in a decision or action of the
organization:
(a) if participating in the decision would be
incompatible with the lawyer's obligations to a client under Rule 1.7; or
(b) where the decision could have a material
adverse effect on the representation of a client of the organization whose
interests are adverse to a client of the lawyer.
COMMENT
Lawyers
should be encouraged to support and participate in legal service organizations.
A lawyer who is an officer or a member of such an organization does not thereby
have a client‑lawyer relationship with persons served by the
organization. However, there is potential conflict between the interests of
such persons and the interests of the lawyer's clients. If the possibility of
such conflict disqualified a lawyer from serving on the board of a legal
services organization, the profession's
involvement in such organizations would be severely curtailed.
It
may be necessary in appropriate cases to reassure a client of the organization
that the representation will not be affected by conflicting loyalties of a
member of the board. Established, written policies in this respect can enhance
the credibility of such assurances.
SCR 20:6.4 Law reform activities affecting client
interests
A lawyer
may serve as a director, officer or member of an organization involved in
reform of the law or its administration notwithstanding that the reform may
affect the interests of a client of the lawyer. When the lawyer knows that the
interests of a client may be materially benefited by a decision in which the
lawyer participates, the lawyer shall disclose that fact but need not identify
the client.
COMMENT
Lawyers
involved in organizations seeking law reform generally do not have a client‑lawyer
relationship with the organization. Otherwise, it might follow that a lawyer
could not be involved in a bar association law reform program that might
indirectly affect a client. See also Rule 1.2(b). For example, a lawyer
specializing in antitrust litigation might be regarded as disqualified from
participating in drafting revisions of rules governing that subject. In
determining the nature and scope of
participation in such activities, a lawyer should be mindful of obligations
to clients under other rules, particularly Rule 1.7. A lawyer is professionally
obligated to protect the integrity of the program by making an appropriate
disclosure within the organization when the lawyer knows a private client might
be materially benefited.
INFORMATION
ABOUT LEGAL SERVICES
SCR
20:7.1 Communications concerning a
lawyer's services (a) A lawyer shall not make a false or
misleading communication about the lawyer or the lawyer's services. A
communication is false or misleading if it:
(1) contains a material misrepresentation of
fact or law, or omits a fact necessary to make the statement considered as a
whole not materially misleading;
(2) is likely to create an unjustified
expectation about results the lawyer can achieve, or states or implies that the
lawyer can achieve results by means that violate the Rules of Professional
Conduct or other law;
(3) compares the lawyer's services with other
lawyers' services, unless the comparison can be factually substantiated;
or
(4) contains any paid testimonial about, or paid
endorsement of, the lawyer without identifying the fact that payment has been
made or, if the testimonial or endorsement is not made by an actual client,
without identifying that fact.
(b) A copy or recording of an advertisement or
written communication shall be kept for two years after its last dissemination
along with a record of when and where it was used.
(c) Any communication made pursuant to this rule
shall include the name of at least one lawyer responsible for its content.
COMMENT
This
rule governs all communications about a lawyer's services, including
advertising permitted by Rule 7.2 and solicitation permitted by Rule 7.3.
Whatever means are used to make known a lawyer's services, statements about
them should not be false or misleading.
The
prohibition in paragraph (a)(2) of statements that may create "unjustified
expectations" would ordinarily preclude advertisements about results
obtained on behalf of a client, such as the amount of a damage award or the
lawyer's record in obtaining favorable verdicts, and advertisements containing
client endorsements. Such information may create the unjustified expectation
that similar results can be obtained for others without reference to the
specific factual and legal circumstances.
Paragraph
(b) requires that a record of the content and use of advertising be kept in
order to facilitate enforcement of this rule. It does not require that
advertising be subject to review prior to dissemination. Such a requirement
would be burdensome and expensive relative to its possible benefits, and may be
doubtful constitutionality. Paragraph (c) requires each communication to
contain the name of at least one lawyer responsible for its content.
Committee
Comment: Rule 7.1(a)(3) would change
Wisconsin law in requiring a lawyer who engages in comparison advertising to
substantiate the comparison.
Disciplinary Proceedings Against Marcus & Tepper, 107 Wis. 2d 560, 320
N.W.2d 806 (1982). Rule 7.1(a)(4) is not part of the Model Rule and is intended
to insure that the public will not be misled by testimonials or endorsements.
Paragraphs (b) and (c) and the final paragraph of the Comment have been moved
from Model Rule 7.2 to this rule in order to make clear that copies of written
communications under proposed Rule 7.3(a) must be retained by the lawyer.
SCR
20:7.2 Advertising
(a) Subject to the requirements of Rule 7.1, a
lawyer may advertise services through public media, such as a telephone
directory, legal directory, newspaper or other periodical, outdoor, radio or
television, or through direct‑mail advertising distributed generally to
persons not known to need legal services of the kind provided by the lawyer in
a particular matter.
(b) A lawyer shall not give anything of value to
a person for recommending the lawyer's services, except that a lawyer may pay
the reasonable cost of advertising or written communication permitted by this
rule and may pay the usual charges of a not‑for‑profit lawyer
referral service or other legal service organization, and pay for a law
practice in accordance with SCR 20:1.17.
COMMENT
To
assist the public in obtaining legal services, lawyers should be allowed to
make known their services not only through reputation but also through
organized information campaigns in the form of advertising. Advertising
involves an active quest for clients, contrary to the tradition that a lawyer
should not seek clientele. However, the public's need to know about legal
services can be fulfilled in part through advertising. This need is
particularly acute in the case of persons of moderate means who have not made extensive use of legal
services. The interest in expanding public information about legal services
ought to prevail over considerations of tradition. Nevertheless, advertising by
lawyers entails the risk of practices that are misleading or overreaching.
This
rule permits public dissemination of information concerning a lawyer's name or
firm name, address and telephone number; the kinds of services the lawyer will
undertake; the basis on which the lawyer's fees are determined, including
prices for specific services and payment and credit arrangements; a lawyer's
foreign language ability; names of references and, with their consent, names of
clients regularly represented; and other information that might invite the
attention of those seeking legal assistance.
Questions
of effectiveness and taste in advertising are matters of speculation and
subjective judgment. Some jurisdictions have had extensive prohibitions against
television advertising, against advertising going beyond specified facts about
a lawyer, or against "undignified" advertising. Television is now one
of the most powerful media for getting information to the public, particularly
persons of low and moderate income; prohibiting television advertising,
therefore, would impede the flow of
information about legal services to many sectors of the public. Limiting
the information that may be advertised has a similar effect and assumes that
the bar can accurately forecast the kind of information that the public would
regard as relevant.
Neither
this rule nor Rule 7.3 prohibits communications authorized by law, such as
notice to members of a class in class action litigation.
Paying
Others to Recommend a Lawyer
A
lawyer is allowed to pay for advertising permitted by this rule and for the
purchase of a law practice in accordance with SCR 20:1.17, but otherwise is not
permitted to pay another person for channeling professional work. This
restriction does not prevent an organization or person other than the lawyer
from advertising or recommending the lawyer's services. Thus, a legal aid
agency or prepaid legal services plan may pay to advertise legal services
provided under its auspices. Likewise, a lawyer may participate in not‑for‑profit lawyer referral
programs and pay the usual fees charged by such programs.
Committee
Comment: The last clause of paragraph
(a), concerning direct‑mail advertising, is rewritten to better express
the relation between this rule and Rule 7.3. Also, the rule and comment
concerning the requirements that a copy or recording of any advertisement or
written communication be kept by the lawyer for two years and that a
communications include the name of at least one lawyer responsible for its
content have been moved to proposed Rule 7.1.
SCR
20:7.3 Direct contact with prospective
clients
(a) Subject to the requirements of Rule 7.1 and
paragraphs (b) and (d), a lawyer may initiate written communication, not
involving personal or telephone contact, with persons known to need legal
services of the kind provided by the lawyer in a particular matter, for the
purpose of obtaining professional employment.
(b) A written communication under par. (a) shall
be conspicuously labeled with the word "Advertisement" and a copy of
it shall be filed with the office of lawyer regulation within 5 days of its
dissemination.
(c) A lawyer shall not initiate personal
contact, including telephone contact, with a prospective client for the purpose
of obtaining professional employment except in the following circumstances and
subject to the requirements of Rule 7.1 and paragraph (d):
(1) If the prospective client is a close friend,
relative or former client, or one whom the lawyer reasonably believes to be a
client.
(2) Under the auspices of a public or charitable
legal services organization.
(3) Under the auspices of a bona fide political,
social, civic, fraternal, employee or trade organization whose purposes include
but are not limited to providing or recommending legal services, if the legal
services are related to the principal purposes of the organization.
(d) A lawyer shall not initiate a written
communication under paragraph (a) or personal contact (including telephone
contact) under paragraph (c) if:
(1) the lawyer knows or reasonably should know
that the physical, emotional or mental state of the person makes it unlikely
that the person would exercise reasonable judgment in employing a lawyer;
(2) the person has made known to the lawyer a
desire not to receive a communication from the lawyer; or
(3) the communication involves coercion, duress
or harassment.
(f) Except as permitted under SCR 11.06, a
lawyer, at his or her instance, shall not draft legal documents, such as wills,
trust instruments or contracts, which require or imply that the lawyer's
services be used in relation to that document.
Committee
Comment: This provision differs from
Model Rule 7.3 which, in the committee's view, would unconstitutionally limit a
lawyer's protected right to commercial speech.
Paragraph
(a) of Rule 7.3 allows a lawyer to solicit professional employment from a
prospective client by direct mail. This rule follows the line of cases holding
that solicitation by direct mail is permissible where the content of the
mailing would otherwise be permitted in an advertisement. The United States
Supreme Court in In re R.M.J., 455
U.S. 191 (1982), recognized that direct mail posed difficulties of supervision,
but suggested that direct mail might be effectively regulated by means less
drastic than outright prohibition. Any mailing sent pursuant to this rule is
subject to the requirements of Rule 7.1(b) and (c).
Direct
mail solicitation raises constitutional concerns with regard to the breadth of
permitted regulation. Some mail solicitation may be misleading, or even false,
and the state has a substantial interest in preventing such deception. Nonetheless,
the regulation of commercial speech may not be more extensive than necessary to
safeguard the public from false and misleading representations.
Direct
mailings do not unduly invade the privacy of the individuals who are solicited.
Recipients of direct mail may avoid offensive solicitation by throwing the mail
away. Consolidated Edison
Co. v. Public Service Comm., 447 U.S. 530, 542 (1980).
The
rule does not permit unrestrained direct mail solicitation. Unrestricted
solicitation may expose the public to harassment, overreaching, provocation of
nuisance litigation and schemes for the systematic fabrication of claims, all
of which were experienced prior to the adoption of restrictions on
solicitation. Measures designed to suppress these harms are constitutionally
legitimate. The restrictions contained in paragraph (d)(1), (2) and (3) are
designed to respond to lawyer mail appeals directed to a "known or calculated weakness."
For example, a letter sent to a potential client undergoing active medical
treatment for a traumatic injury may involve overreaching as it is unlikely
that the consumer's emotional state will allow the prospective client to exercise
reasonable judgment about employing a lawyer.
The provisions of paragraph (a)
do not permit solicitation by the lawyer of third persons who, in turn, are
asked to solicit clients for the lawyer. A ban on such solicitation has been
upheld. Alessi v. Committee
on Professional Standards, 60 N.Y.2d 229, 469 N.Y.S.2d 577 (1983), cert.
denied, 52 U.S.L.W. 3687 (U.S. Mar. 19, 1984) (No. 83‑1214).
Paragraph
(c) generally prohibits in‑person solicitation, including telephone
solicitation, except in the specific circumstances listed in paragraph (c).
Solicitation under this paragraph refers only to contract, either in person or
by telephone, initiated by the lawyer.
In Ohralik v. Ohio State Bar Association, 436 U.S. 447
(1978), the Supreme Court wrote that "in‑person solicitation of
professional employment by a lawyer does not stand on a par with truthful
advertising . . .." Id. at 455. The court found that in‑person
solicitation does advise prospective clients about the availability and terms
of legal services and does provide terms with information concerning legal
rights and remedies. Id. at 457‑58.
The
court, however, also found certain evils incident to in‑person
solicitations:
(1) it may overpressure an individual consumer
into an immediate response;
(2) it may provide only one side of an issue
without the opportunity for alternative information gathering; and
(3) it may stifle comparison shopping.
Id. at 457.
In
recognition of the problems inherent in personal solicitation, the court found
that the state has a legitimate, perhaps compelling, interest in regulating its
use. Ohralik, id. at 460‑62. The state
may ban such solicitation because "it is not unreasonable for the State to
presume that in‑person solicitation by lawyers more often than not will
be injurious to the person solicited." Id. at 466‑67. Paragraph (c) generally prohibits in‑person
and telephone solicitation for these reasons.
Excepted
from the general prohibition is certain specific conduct. Paragraph (c)(1)
permits in‑person solicitation of close friends and relatives.
Subparagraphs
(c)(2) and (3) permit in‑person solicitation under the sponsorship of
certain civic groups. The protection of this solicitation today flows from the
decision in In re Primus, 436
U.S. 412 (1978), and the series of cases beginning with NAACP v. Button, 371
U.S. 415 (1963) (solicitation activities of these types of organizations are
designed to provide meaningful access to the judicial system and are thus
fundamentally protected).
The permitted
in‑person or telephone solicitation of paragraph (c)(1)‑(3) is not
unrestrained. The state has an interest in protecting the consumer. Thus, any
permitted solicitation under paragraph (c) is subject to the three limitations
of paragraph (d)(1)‑(3).
Rule
7.3(f) maintains the rule of
State v. Gulbankian, 54 Wis. 2d 605, 196 N.W.2d 733 (1972), and would not
change the result of Estate of Devroy, 109 Wis. 2d 154, 325 N.W.2d 345
(1982).
SCR
20:7.4 Communication of fields of
practice
A lawyer
may communicate the fact that the lawyer does or does not practice in
particular fields of law. A lawyer shall not state or imply that the lawyer is
a "specialist", "certified", or words of similar import
except as follows:
(a) A lawyer admitted to engage in patent
practice before the United States Patent and Trademark Office may use the
designation "patent attorney" or a substantially similar
designation.
(b) A lawyer engaged in admiralty practice may
use the designation "admiralty", "proctor in admiralty" or
a substantially similar designation.
(c) A lawyer may communicate the fact that he or
she has been certified as a specialist in a field of law by a named
organization or authority but only if that certification is granted by an
organization or authority whose specialty certification program is accredited
by the American Bar Association.
COMMENT
This
rule permits a lawyer to indicate areas of practice in communications about the
lawyer's services; for example, in a telephone directory or other advertising.
If a lawyer practices only in certain fields, or will not accept matters except
in such fields, the lawyer is permitted so to indicate. All communications are, however, subject to
the "false and misleading" standard of SCR 20:7.1 in respect to
communications concerning a lawyer's services.
A
lawyer may not communicate that the lawyer is a specialist or has been
recognized or certified as a specialist in a particular field of law, except as
provided by this rule. Recognition of
specialization in patent matters is a matter of long established policy of the
Patent and Trademark Office, as reflected in paragraph (a). Paragraph (b) recognizes that the
designation of admiralty practice has a long historical tradition associated
with maritime commerce and the federal courts.
Paragraph
(c) permits a lawyer to communicate that the lawyer has been certified as a
specialist in a field of law when the American Bar Association has accredited
the organization's specialty program to grant such certification. Certification procedures imply that an
objective entity has recognized a lawyer's higher degree of specialized ability
than is suggested by general licensure to practice law. Those objective entities may be expected to
apply standards of competence, experience and knowledge to insure that a
lawyer's recognition as a specialist is meaningful and reliable. In order to insure that consumers can obtain
access to useful certification, the name of the certifying organization or
agency must be included in any communication regarding the certification.
See,
Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990).
SCR
20:7.5 Firm names and letterheads
(a) A lawyer shall not use a firm name,
letterhead or other professional designation that violates Rule 7.1. A trade
name may be used by a lawyer in private practice if it does not imply a
connection with a government agency or with a public or charitable legal
services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one
jurisdiction may use the same name in each jurisdiction, but identification of
the lawyers in an office of the firm shall indicate the jurisdictional
limitations on those not licensed to practice in the jurisdiction where the
office is located.
(c) The name of a lawyer holding a public office
shall not be used in the name of a law firm, or in communications on its
behalf, during any substantial period in which the lawyer is not actively and
regularly practicing with the firm.
(d) Lawyers may state or imply that they
practice in a partnership or other organization only when that is the fact.
COMMENT
A
firm may be designated by the names of all or some of its members, by the names
of deceased members where there has been a continuing succession in the firm's
identity or by a trade name such as the "ABC Legal Clinic." Although
the United States Supreme Court has held that legislation may prohibit the use
of trade names in professional practice, use of such names in law practice is
acceptable so long as it is not misleading. If a private firm uses a trade name
such as "Springfield Legal Clinic,"
an express disclaimer that it is a public legal aid agency may be
required to avoid a misleading implication. It may be observed that any firm
name including the name of a deceased partner is, strictly speaking, a trade
name. The use of such names to designate law firms has proven a useful means of
identification. However, it is misleading to use the name of a lawyer not
associated with the firm or a predecessor of the firm.
With
regard to paragraph (d), lawyers sharing office facilities, but who are not in
fact partners, may not denominate themselves as, for example, "Smith and
Jones," for that title suggests partnership in the practice of law.
MAINTAINING THE INTEGRITY OF THE PROFESSION
SCR
20:8.1 Bar admission and disciplinary
matters
An
applicant for admission to the bar, or a lawyer in connection with a bar
admission application or in connection with a disciplinary matter, shall
not:
(a) knowingly make a false statement of material
fact; or
(b) fail to disclose a fact necessary to correct
a misapprehension known by the person to have arisen in the matter, or
knowingly fail to respond to a lawful demand for information from an admissions
or disciplinary authority, except that this rule does not require disclosure of
information otherwise protected by Rule 1.6.
COMMENT
The
duty imposed by this rule extends to persons seeking admission to the bar as
well as to lawyers. Hence, if a person makes a material false statement in
connection with an application for admission, it may be the basis for
subsequent disciplinary action if the person is admitted, and in any event may
be relevant in a subsequent admission application. The duty imposed by this
rule applies to a lawyer's own admission or discipline as well as that of
others. Thus, it is a separate professional
offense for a lawyer to knowingly make misrepresentation or omission in
connection with a disciplinary investigation of the lawyer's own conduct. This
rule also requires affirmative clarification of any misunderstanding on the
part of the admissions or disciplinary authority of which the person involved
becomes aware.
This
rule is subject to the provisions of the Fifth Amendment of the United States
Constitution and corresponding provisions of state constitutions. A person
relying on such a provision in response to a question, however, should do so
openly and not use the right of nondisclosure as a justification for failure to
comply with this rule.
A
lawyer representing an applicant for admission to the bar, or representing a
lawyer who is the subject of a disciplinary inquiry or proceeding, is governed
by the rules applicable to the client‑lawyer relationship.
SCR
20:8.2 Judicial and legal
officials
(a) A lawyer shall not make a statement that the
lawyer knows to be false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judge, adjudicatory officer or
public legal officer, or of a candidate for election or appointment to judicial
or legal office.
(b) A lawyer who is a candidate for judicial
office shall comply with the applicable provisions of the code of judicial
conduct.
COMMENT
Assessments
by lawyers are relied on in evaluating the professional or personal fitness of
persons being considered for election or appointment to judicial office and to
public legal offices, such as attorney general, prosecuting attorney and public
defender. Expressing honest and candid opinions on such matters contributes to
improving the administration of justice. Conversely, false statements by a
lawyer can unfairly undermine public confidence in the administration of
justice.
When
a lawyer seeks judicial office, the lawyer should be bound by applicable
limitations on political activity.
To
maintain the fair and independent administration of justice, lawyers are
encouraged to continue traditional efforts to defend judges and courts unjustly
criticized.
SCR
20:8.3 Reporting professional
misconduct
(a) A lawyer having knowledge 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.
(b) A lawyer having knowledge that a judge has
committed a violation of applicable rules of judicial conduct that raises a
substantial question as to the judge's fitness for office shall inform the
appropriate authority.
(c) This rule does not require disclosure of any
of the following:
(1) Information otherwise protected by
Rule 1.6.
(2) Information acquired by one of the
following:
(i) A member of any committee or
organization approved by any bar association to assist ill or disabled lawyers
where such information is acquired in the course of assisting an ill or
disabled lawyer.
(ii) Any person selected by a court or any
bar association to mediate or arbitrate disputes between lawyers arising out of
a professional or economic dispute involving law firm dissolutions, termination
or departure of one or more lawyers from a law firm where such information is
acquired in the course of mediating or arbitrating the dispute between lawyers.
COMMENT
Self‑regulation
of the legal profession requires that members of the profession initiate
disciplinary investigation when they know of a violation of the Rules of
Professional Conduct. Lawyers have a similar obligation with respect to
judicial misconduct. An apparently isolated violation may indicate a pattern of
misconduct that only a disciplinary investigation can uncover. Reporting a
violation is especially important where the victim is unlikely to discover the
offense.
A
report about misconduct is not required where it would involve violation of
Rule 1.6. However, a lawyer should encourage a client to consent to disclosure
where prosecution would not substantially prejudice the client's
interests.
If a
lawyer were obliged to report every violation of the rules, the failure to
report any violation would itself be a professional offense. Such a requirement
existed in many jurisdictions but proved to be unenforceable. This rule limits
the reporting obligation to those offenses that a self‑regulating
profession must vigorously endeavor to prevent. A measure of judgment is,
therefore, required in complying with the provisions of this rule. The term
"substantial" refers to the seriousness of the possible offense and not the quantum of
evidence of which the lawyer is aware. A report should be made to the bar
disciplinary agency unless some other agency, such as a peer review agency, is
more appropriate in the circumstances. Similar considerations apply to the
reporting of judicial misconduct.
The
duty to report professional misconduct does not apply to a lawyer retained to
represent a lawyer whose professional conduct is in question. Such a situation
is governed by the rules applicable to the client‑lawyer relationship.
The
provision in (c)(2)(ii) in no way relieves the lawyers or the law firm
participating in the mediation or arbitration process from their
responsibilities under SCR 20:8.3(a), nor does it immunize them from
professional discipline. The term
"law firm" is to be broadly construed to include but not be limited
to entities such as service corporations, partnerships and sole
proprietorships.
Committee
Comment: Subparagraph (c)(2) is not
contained in the Model Rule. This provision is added so that lawyers who are
ill, disabled or who have alcohol or other substance abuse problems will not be
discouraged from seeking assistance, out of fear that lawyers who assist them
will be bound to report any misconduct to the appropriate authorities.
SCR
20:8.4 Misconduct
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;
(b) commit a criminal act that reflects
adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects;
(c) engage in conduct involving dishonesty,
fraud, deceit or misrepresentation;
(d) state or imply an ability to influence
improperly a government agency or official;
(e) knowingly assist a judge or judicial officer
in conduct that is a violation of applicable rules of judicial conduct or other
law; or
(f) violate a statute, supreme court rule,
supreme court order or supreme court decision regulating the conduct of
lawyers; or
(g) violate the attorney's oath.
COMMENT
Many
kinds of illegal conduct reflect adversely on fitness to practice law, such as
offenses involving fraud and the offense of willful failure to file an income
tax return. However, some kinds of offense carry no such implication.
Traditionally, the distinction was drawn in terms of offenses involving
"moral turpitude." That concept can be construed to include offenses
concerning some matters of personal morality, such as adultery and comparable
offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally
answerable to the entire criminal law, a lawyer should be professionally
answerable only for offenses that indicate lack of those characteristics
relevant to law practice. Offenses involving violence, dishonesty, or breach of
trust, or serious interference with the administration of justice are in that
category. A pattern of repeated offenses, even ones of minor significance when
considered separately, can indicate indifference to legal obligation.
A
lawyer may refuse to comply with an obligation imposed by law upon a good faith
belief that no valid obligation exists. The provisions of Rule 1.2(d)
concerning a good faith challenge to the validity, scope, meaning or
application of the law apply to challenges of legal regulation of the practice
of law.
Lawyers
holding public office assume legal responsibilities going beyond those of other
citizens. A lawyer's abuse of public office can suggest an inability to fulfill
the professional role of attorney. The same is true of abuse of positions of
private trust such as trustee, executor, administrator, guardian, agent and
officer, director or manager of a corporation or other organization.
Committee
Comment: The committee deleted the
Model Rule provision making it misconduct for a lawyer to "engage in
conduct that is prejudicial to the administration of justice." An
identical provision in the Model Code of Professional Responsibility. DR1‑102(A)(5),
was deleted by the Supreme Court when it adopted the Code of Professional
Responsibility. This provision is vague and should not, in the committee's
view, provide an independent basis for a finding of misconduct.
Paragraph
(f) was not included in the Model Rule but i s a reformulation of Supreme Court
Rule 21.05(2) and (5). The committee recommends that SCR 21.05 be merged into
proposed Rule 8.4 so that unnecessarily redundant or conflicting provisions
concerning misconduct do not appear in the Supreme Court Rules. In merging SCR
21.05 into 8.4, the committee retains the provision retained in current SCR
21.05(3), that misconduct includes conduct that violates the attorney's oath.
Although enforceable provisions of the attorney's
oath may be elsewhere incorporated into the proposed rules, the court has
referred to violations of the attorney's oath in imposing discipline on
lawyers. See Matter of Proceedings
Against Runyon, 121 Wis. 2d 37, 357 N.W.2d 545 (1984) (false testimony);
State v. Ledvina, 71 Wis. 2d 195, 237 N.W.2d 683 (1976) (offensive
personality).
SCR
20:8.5 Disciplinary authority; choice
of law
(a) Disciplinary Authority. A lawyer admitted to the bar of this state
is subject to the disciplinary authority of this state regardless of where the lawyer's
conduct occurs. A lawyer allowed by a
court of this state to appear and participate in a proceeding in that court is
subject to the disciplinary authority of this state for conduct that occurs in
connection with that proceeding. For
the same conduct, a lawyer may be subject to the disciplinary authority of both
this state and another jurisdiction where the lawyer is admitted to the bar or
allowed to appear in a court proceeding.
(b) Choice of Law. In the exercise of the disciplinary authority of this state, the
rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a proceeding
in a court before which a lawyer has been authorized to appear, either by
admission to the bar in the jurisdiction or by the court specifically for
purposes of that proceeding, the rules to be applied shall be the rules of the
jurisdiction in which the court sits, unless the rules of the court provide
otherwise.
(2) for any other conduct,
(i) if the lawyer is admitted to the bar of only
this state, the rules to be applied shall be the rules of this state.
(ii) if the lawyer is admitted to the bars of
this state and another jurisdiction, the rules to be applied shall be the rules
of the admitting jurisdiction in which the lawyer principally practices, except
that if particular conduct clearly has its predominant effect in another
jurisdiction in which the lawyer is admitted to the bar, the rules of that
jurisdiction shall be applied to that conduct.
COMMENT
Disciplinary
Authority
Paragraph
(a) restates longstanding law.
Choice
of Law
[1] A lawyer may be potentially subject to more
than one set of rules of professional conduct which imposes different
obligations. The lawyer may be licensed
to practice in more than one jurisdiction with differing rules, or may be
admitted to practice before a particular court in a jurisdiction with rules
that differ from those of the jurisdiction or jurisdictions in which the lawyer
is licensed to practice. In the past,
decisions have not developed clear or consistent guidance as to which rules
apply in such circumstances.
[2] Paragraph (b) seeks to resolve such
potential conflicts. Its premise is
that minimizing conflicts between rules, as well as uncertainty about which
rules are applicable, is in the best interest of both clients and the
profession (as well as the bodies having authority to regulate the
profession). Accordingly, it takes the
approach of (i) providing that any particular conduct of a lawyer shall be
subject to only one set of rules of professional conduct, and (ii) making the
determination of which set of rules applies to particular conduct as
straightforward as possible, consistent with recognition of appropriate
regulatory interests of relevant jurisdictions.
[3] Paragraph (b) provides that as to a lawyer's
conduct relating to a proceeding in a court before which the lawyer is
authorized to appear (either by bar admission in the jurisdiction or by the
court pro hac vice), the lawyer shall be subject only to the rules of
professional conduct of the jurisdiction in which the court sits. As to all other conduct, paragraph (b)
provides that a lawyer admitted to the bar of only this jurisdiction shall be
subject to the rules of professional conduct of this jurisdiction, and that a
lawyer admitted to the bars of multiple jurisdictions shall be subject only to
the rules of the jurisdiction where he or she (as an individual, not his or her
firm) principally practices, but with one exception: if particular conduct clearly has its predominant effect in
another admitting jurisdiction, then only the rules of that jurisdiction shall
apply. The intention is for the latter
exception to be a narrow one. It would
be appropriately applied, for example, to a situation in which a lawyer
admitted to the bar in, and principally practicing in, State A, but also
admitted to the bar in State B, handled an acquisition by a company whose
headquarters and operations were in State B of another, similar such
company. The exception would not
appropriately be applied, on the other hand, if the lawyer handled an acquisition
by a company whose headquarters and operations were in State A of a company
whose headquarters and main operations were in State A, but which also had some
operations in State B.
[4] If two admitting jurisdictions were to
proceed against a lawyer for the same conduct, they should, applying this rule,
identify the same governing ethics rules.
They should take all appropriate steps to see that they do apply the
same rule to the same conduct, and in all events should avoid proceeding
against a lawyer on the basis of two inconsistent rules.
[5] The choice of law provision is not intended
to apply to transnational practice.
Choice of law in this context should be the subject of agreements
between jurisdictions or of appropriate international law.
Adopted
by the supreme court on June 10, 1987, effective January 1, 1988; amended
January 1, 1989; November 6, 1990; May 29, 1991; October 25, 1991; November 21,
1991; April 19, 1995; November 15, 1995; June 26, 1996; October 28, 1996; March
18, 1997; June 4, 1998; October 30, 1998.; November 9, 1999; November 14, 2001;
April 30, 2004.