WAUKESHA COUNTY BAR ASSOCIATION Legal Ethics: Lost in the Fog Waukesha County Bar Association November 12, 2015 11187276.pptx

WAUKESHA COUNTYBAR ASSOCIATION

Legal Ethics:Lost in the Fog

Waukesha County Bar AssociationNovember 12, 2015

11187276.pptx

Scenario One

• Lawyer is contacted by two sisters who were nominated as co-personal representatives in the will of their recently deceased mother. Lawyer begins an informal probate proceeding, and some weeks into the matter, has sisters sign a brief form engagement letter in which the CLIENT line is left blank. In fee line, lawyer writes “4%.”

• Who (or what) is the lawyer’s client?

OLR v. Roethe, 323 Wis.2d 611

• ¶46 There was a dispute over whether the estate or the co-personal representatives were the client. Attorney Bruce Briney testified there were no reported cases on point giving guidance as to who the client is in a probate matter. However, Attorney Briney testified unequivocally that the client is the estate. In Attorney Briney's opinion, it was reasonable for Attorney Roethe to presume he was representing the estate as a client, and he testified that Attorney Roethe's scope of representation was appropriate. Attorney James Hill expressed the opinion that the co-personal representatives, not the estate, were the clients. The referee ultimately concluded the co-personal representatives were the clients.

• ¶47 The referee based this conclusion, in large part, on the language of the legal services agreement, which unequivocally indicated the clients were the co-personal representatives. Nonetheless, the referee said Attorney Roethe quite clearly and honestly believed the estate was his client and he was doing what he was obligated to do as an attorney for the benefit of the estate.

ABA Formal Opinion 94-480, footnote 1• The majority of jurisdictions consider that a lawyer who represents a fiduciary does not also represent the

beneficiaries, see Succession of Wallace, 574 So.2d 348 (La.1991) (citing cases), and we understand the Model Rules to reflect this majority view. The law varies somewhat among jurisdictions, however, as is recognized in the following comment to Rule 1.7:

• In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. The lawyer should make clear the relationship to the parties involved.

• Thus, in some jurisdictions, a lawyer representing a fiduciary also owes fiduciary obligations to the beneficiaries that in some circumstances will override obligations otherwise owed by the lawyer to the fiduciary, such as the obligation of confidentiality. See Charleson v. Hardesty, 839 P.2d 1303 (Nev.1992). There is also some authority for the view that when a lawyer represents a fiduciary in a trust or estate matter, the client is not the fiduciary, but rather the trust estate. See, e.g., Steinway v. Bolden, 460 N.W.2d 306 (Mich.App.1990). In a jurisdiction where that is the prevailing law, the trust or estate would presumably be the "entity as client" that is contemplated by Rule 1.13.

• The present Opinion would not necessarily be applicable in a jurisdiction where the controlling case law reflects one of these minority positions. See also note 9 (discussing variants of Rule 1.6 among the jurisdictions).

SCR 20:1.7, Comment [27]

For example, conflict questions may arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for severalfamily members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may be present. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. In order to comply with conflict of interest rules, the lawyer should make clear the lawyer's relationship to the parties involved.

Scenario Two

• Lawyer is approached by client to handle an immigration matter. Client agrees to pay $4000 advanced flat fee, and Lawyer begins to work on the matter after receiving payment from client. Shortly thereafter, client tells lawyer she no longer wishes to proceed and wants her money back. Lawyer tells her that because he has spent 6.5 hours on the matter and the engagement agreement states that the fees are earned upon receipt and non-refundable, there will be no refund.

• Does lawyer owe a refund? If so, how much?

SCR 20:1.0(ag)

"Advanced fee" denotes an amount paid to a lawyer in contemplationof future services, which will be earned at an agreed upon basis, whether hourly, flat, or another basis. Any amount paid to a lawyer in contemplation of future services whether on an hourly, flat or other basis, is an advanced fee regardless of whether that fee is characterized as an "advanced fee," "minimum fee," "nonrefundable fee," or any other characterization. Advanced fees are subject to the requirements of SCR 20:1.5, SCR 20:1.15(b)(4) or (4m), SCR 20:1.15(e)(4)h., SCR 20:1.15(g), and SCR 20:1.16(d).

SCR 20:1.0(dm)

"Flat fee" denotes a fixed amount paid to a lawyer for specific, agreed-upon services, or for a fixed, agreed-upon stage in a representation, regardless of the time required of the lawyer to perform the service orreach the agreed-upon stage in the representation. A flat fee, sometimes referred to as "unit billing," is not an advance against the lawyer's hourly rate and may not be billed against at an hourly rate. Flatfees become the property of the lawyer upon receipt and are subject tothe requirements of SCR 20:1.5, SCR 20:1.15(b)(4) or (4m), SCR 20:1.15(e)(4)h., SCR 20:1.15(g), and SCR 20:1.16(d).

SCR 20:1.16

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client isentitled and refunding any advance payment of fee or expense that hasnot been earned or incurred. The lawyer may retain papers relating tothe client to the extent permitted by other law.

OLR v. Din, 2015 WI 4

¶37 Attorney Din says the need to document the stage of work completed under flat fee agreements may not be appreciated by lawyers early in their practice. He says an inexperienced lawyer may not anticipate issues that arise if the lawyer's engagement is terminated before the lawyer's work is complete. He says these issues have been brought home to him by this proceeding and he has taken steps to improve his practices to avoid a recurrence of this problem in the future. Attorney Din acknowledges that he exercised poor judgment in failing to make any refund to his clients, but he says the absence of bright line rules determining the proper amount of flat fee refunds ameliorates in some measure the severity of his conduct.

OLR v. Din

39 The OLR asserts that the referee's revised report addresses Attorney Din's objections to the initial report. The OLR argues that a flat fee agreement does not excuse the repeated failure to return unearned fees when a lawyer fails to complete the agreed upon services. The OLR says that regardless of the description of the fee, the fact is that a lawyer must perform the agreed upon services. In this matter, Attorney Din collected fees from several clients but failed to provide sufficient useful work for the client and then refused to refund any fees upon the client's request. The OLR disagrees with Attorney Din's argument that he ought to be afforded some special consideration due to the fact that the fee was a flat fee.

Wisconsin Ethics Op. E-93-4 (amended 3/23/15)• Based on the forgoing, the Committee does not believe that it would be accurate to term either an availability

retainer or advanced fee as nonrefundable. In the view of the Committee, a reasonable person would interpret the term “nonrefundable" to mean that the person would not be entitled to a refund under any circumstances. As discussed above however, circumstances may arise that would prohibit the lawyer from fulfilling the obligations necessary to earn either the retainer or advanced fee. Therefore to use the term “nonrefundable” in connection with either advanced fees or retainers is a misleading communication about the lawyer’s services in violation of SCR 20:7.1(a) and thus prohibited. Depending upon circumstances, use the of the term “nonrefundable” may also violate SCR 20:8.4(c).

• The Committee also notes that use of the term “nonrefundable” does not affect the analysis of whether a lawyer is entitled to keep an advanced fee or availability retainer. As discussed above, in order to keep such payments, lawyers must demonstrate that they are earned, and the determination of whether such payments are earned is not affected by whether they are described as “nonrefundable” in an engagement letter. This is illustrated by Wisconsin disciplinary actions (initiated since the adoption of the new Rule), where lawyers were required to refund advanced fee payments notwithstanding that they were described by the lawyers as “nonrefundable.”4

• Lastly, the Committee notes that SCR 20:1.0(mm) states that a retainer becomes the property of the lawyer upon receipt, but that retainers are subject to the requirements of SCR 20:1.6(d). Therefore, the requirement that such fees be earned is explicit, and the fact that lawyers may have a property interest in availability retainers does not alter the analysis as to whether the use of the term “nonrefundable” is appropriate.5

Scenario Three

• Lawyer has represented small company owned by husband and wife for years. Husband and wife decide to retain new counsel for the company and request attorney provide all the files to new attorney. Lawyer has many bankers boxes full of files and tells clients that since he provided a fair amount of the information to the client corporation during the course of the representation, they can tell him what they really need and he will make copies of that at the client’s expense. New counsel replies that they want all the original files in their entirety, including e-mails, and the lawyer can bear the expense of any copies he wishes to retain.

• What must be provided to the new counsel?

SCR 20:1.16

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment ofother counsel, surrendering papers and property to which the client isentitled and refunding any advance payment of fee or expense that hasnot been earned or incurred. The lawyer may retain papers relating tothe client to the extent permitted by other law.

Wisconsin Ethics Opinion E-00-03

1) Which documents in a client file belong to the client? It has generally been recognized that each client file is the client's property even though that file is maintained by the lawyer in the lawyer's office. See Colorado Ethics Opinion 104 (1999); Michigan Ethics Opinion RI-203 (1994); Kansas Ethics Opinion 92-05 (1992); Alaska Ethics Opinion 95-6 (1995); In re: Admonition Issued in Panel File No. 94-24, 533 N.W.2d 853 (Minn. S. Ct. 1995). However, certain papers maintained by the lawyer in client files may be the work product of the lawyer and need not be produced to the client on demand. Where this line of demarcation is drawn has never been precisely defined. The Professional Ethics Committee finds the following definition of which papers the lawyer is not required to produce at the client's demand to be sound and instructive.

• There are two primary areas in which the lawyer properly retains papers and documents that do not constitute papers and property to which the client is entitled. One includes documents used by the attorney to prepare initial documents for the client, in which a third party, for example, another client, has a right to nondisclosure. A lawyer has the right to withhold pleadings or other documents related to the lawyer's representation of other clients that the lawyer used as a model on which to draft documents for the current client. However, the product drafted by the lawyer may not be withheld.

• A second area involves those documents that would be considered personal attorney work product and not papers and property to which the client is entitled. Certain materials may be withheld such as, for example, internal memoranda concerning the client file, conflict checks, personnel assignments, and lawyers' notes reflecting personal impressions and comments relating to the business of representing the client. This information is personal attorney work product that is not needed to protect the client's interests, and does not constitute papers or property to which the client is entitled.

• Detailed definition of this second category is difficult. The distinction in this area is factually specific to each situation and must be determined by the lawyer, realizing that the lawyer has the duty to take those steps reasonably practicable to protect the client's interests by surrendering the necessary information. Generally, such duty favors production. See Colorado Ethics Opinion 104 (1999).

E-00-033) Does a law firm have the duty to provide, at the client's request, an electronic disk copy of client's materials that have been maintained in an electronic form by the law firm? In Wisconsin Ethics Opinion 82-7, this committee opined that a lawyer is not required to provide, at his or her own expense, a duplicate of those materials in a client file that the lawyer previously sent to the client. The committee now reaffirms that position. However, even if a lawyer may charge for the actual cost of making a second copy of materials previously sent to the client, the materials must be provided at the client's request to comply with the lawyer's obligation to, upon the termination of a representation, take steps to the extent reasonably practicable to protect a client's interest, such as surrendering papers and property to which the client is entitled. See SCR 20:1.16(d).

ABA Formal Opinion 471 (2015)

The Model Rules do not define the “papers and property to which the client is entitled,” that the lawyer must surrender pursuant to Rule 1.16(d). Jurisdictions vary in their interpretation of this obligation. A majority of jurisdictions follow what is referred to as the “entire file” approach. In those jurisdictions, at the termination of a representation, a lawyer must surrender papers and property related to the representation in the lawyer’s possession unless the lawyer establishes thata specific exception applies and that certain papers or property may be properly withheld. Commonly recognized exceptions to surrender include: materials that would violate a duty of non-disclosure to another person;14 materials containing a lawyer’s assessment of the client; materials Containing information, which, if released, could endanger the health, safety, or welfare of the client or others; and documents reflecting only internal firm communications and assignments. The entire file approach assumes that the client has an expansive general right to materials related to The representation and retains that right when the representation ends.


• Other jurisdictions follow variations of an end-product approach. These variations distinguish between documents that are the “end-product” of a lawyer’s services, which must be surrendered and other material that may have led to the creation of that “end-product,” which need not be automatically surrendered. Under these variations of the end-product approach, the lawyer must surrender: correspondence by the lawyer for the benefit of the client; investigative reports and other discovery for which the client has paid; and pleadings and other papers filed with a tribunal. The client is also entitled to copies of contracts, wills, corporate records, and other similar documents prepared by the lawyer for the client. These items are generally considered the lawyer’s “end product.”

• Administrative materials related to the representation, such as memoranda concerning potential conflicts of interest, the client’s creditworthiness, time and expense records, or personnel matters, are not considered materials to which the client is entitled under the end-product approach. Additionally, the lawyer’s personal notes, drafts of legal instruments or documents to be filed with a tribunal, other internal memoranda, and legal research are viewed as generated primarily for the lawyer’s own purpose in working on a client’s matter, and, therefore, need not be surrendered to the client under the end product approach.


Therefore, on the facts presented, at a minimum, Rule 1.16(d) requires that the lawyer must surrender to the municipality:

• any materials provided to the lawyer by the municipality; • legal documents filed with a tribunal - or those completed, ready to be filed, but not yet filed;• executed instruments like contracts; • orders or other records of a tribunal; • correspondence issued or received by the lawyer in connection with the representation of the

municipality on relevant issues, including email and other electronic correspondence that has been retained according to the firm’s document retention policy;

• discovery or evidentiary exhibits, including interrogatories and their answers, deposition transcripts, expert witness reports and witness statements, and exhibits;

• legal opinions issued at the request of the municipality; and third party assessments, evaluations, or records paid for by the municipality.


In contrast, under these facts, it is unlikely that within the meaning of Rule 1.16(d), the client is entitled to papers or other property in the lawyer’s possession that the lawyer generated for internal use primarily for the lawyer’s own purpose in

working on the municipality’s matters.32 This is particularly true for matters that are concluded.

Therefore, under the facts presented, under Rule 1.16(d) the lawyer need not provide, for example, the following to the municipality:

• drafts or mark-ups of documents to be filed with a tribunal; • drafts of legal instruments; • internal legal memoranda and research materials; • internal conflict checks; • personal notes; • hourly billing statements; • firm assignments; • notes regarding an ethics consultation; • a general assessment of the municipality or the municipality’s matter; and • documents that might reveal the confidences of other clients.

The Committee notes that when a lawyer has been representing a client on a matter that is not completed and the representation is terminated, the former client may be entitled to the release of some materials the lawyer generated for internal law office use primarily for the lawyer’s own purpose in working on a client’s matter.

Scenario Four• Lawyer brought a civil suit to recover damages on behalf of the victim of a drunk driving accident. To further the

client’s financial interests and for insurance purposes, Lawyer has proposed that the driver sign a statement admitting liability in the civil case in exchange for the victim’s promise not to object to the driver’s application for pre-trial diversion in the criminal case.

• The driver appears to be eligible to participate in an alcohol education program that offers first time offenders

whose violations do not cause serious physical injuries a chance to avoid conviction. If the driver refuses to sign a statement admitting liability, then the victim will strongly object to the driver’s participation in the diversion program. The wishes of victims in these pre-trial diversion programs are given serious consideration.

• The driver’s attorney claims that Lawyer’s proposal is motivated by animus and another civil law suit: the victim’s

family and the driver’s family have been embroiled in several disputes, and Lawyer is currently representing the victim’s family in a dispute involving real estate.

• Does this settlement proposal violate the Rules of Professional Conduct?

SCR 20:3.10

• A lawyer shall not present, participate in presenting or threaten to present criminal charges solely to obtain an advantage in a civil matter.

• REPEALED EFFECTIVE JULY 1, 2007.

ABA Formal Opinion 92-363

USE OF THREATS OF PROSECUTION IN CONNECTION WITH A CIVIL MATTER

The Model Rules do not prohibit a lawyer from using the possibility of presenting criminal charges against the opposing party in a private civil matter to gain relief for a client, provided that the criminal matter is related to the client's civil claim, the lawyer has a well-founded belief that both the civil claim and the criminal charges are warranted by the law and the facts, and the lawyer does not attempt to exert or suggest improper influence over the criminal process. The Model Rules do not prohibit a lawyer from agreeing, or having the lawyer's client agree, in return for satisfaction of the client's civil claim, to refrain from presenting criminal charges against the opposing party as part of a settlement agreement, provided that such agreement does not violate applicable law.


• Rule 8.4(d) and (e) provide that it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice and to state or imply an ability improperly to influence a government official or agency.

• Rule 4.4 (Respect for Rights of Third Persons) prohibits a lawyer from using means that "have no substantial purpose other than to embarrass, delay, or burden a third person...." A lawyer who uses even a well-founded threat of criminal charges merely to harass a third person violates Rule 4.4. See also Hazard & Hodes, supra, § 4.4:104.

• Rule 4.1 (Truthfulness in Statements to Others) imposes a duty on lawyers to be truthful when dealing with others on a client's behalf. A lawyer who threatens criminal prosecution, without any actual intent to so proceed, violates Rule 4.1.

• Finally, Rule 3.1 (Meritorious Claims and Contentions) prohibits an advocate from asserting frivolous claims. A lawyer who threatens criminal prosecution that is not well founded in fact and in law, or threatens such prosecution in furtherance of a civil claim that is not well founded, violates Rule 3.1.

Scenario Five

• Lawyer represents client on an OWI 4th offense charge. Client is out on bail. Lawyer calls client on a weekday afternoon. Client answers cell phone, slurs words and background noise seems to indicate that client is in a tavern. Client tells Lawyer he has to go because he has to drive to pick up his friend from work. Lawyer believes client to be very drunk, and strongly urges client not to go anywhere or take a taxi. Client chuckles, tells Lawyer he knows what he’s doing and hangs up.

• Is Lawyer subject to discipline for doing nothing?

SCR 20:1.6

(b) A lawyer shall reveal information relating to the representation of aclient to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that thelawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another.

Scenario Six• Lawyer has been retained to represent the principal of a local high school who is secretly considering

filing for divorce. The principal states that his spouse has been abusing alcohol for years and has had

affairs. At principals request, Lawyer drafts detailed letter explaining how the process would work and

how such a divorce would likely work. Lawyer works long hours and frequently does some work at

home in the evening. Lawyer sometimes works on his personal computer located in the family den.

One day, Lawyers gets angry phone call from principal who states that news of his marital problems is

now widely known at the school. Lawyer subsequently learns that that his daughter had looked at his

e-mail account on the computer and learned that principal was a client (the e-mail account was not

password protected) and told her friends at school that her dad was representing the principal. One

of her computer geek friends was then easily able to hack into the family computer, whose operating

system had not been updated for several years, and obtained a draft copy of the letter.

• Is Lawyer subject to discipline?

SCR 20:1.6[16] A lawyer must act competently to safeguard information relating to the representation of a client

against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1, and 5.3.

[17] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.

Wisconsin Ethics Op. EF-15-01It is impossible to provide specific requirements for reasonable efforts because lawyers’ ethical duties are continually evolving as technology changes. Specific requirements would soon become obsolete. Moreover, the risks vary with the technology involved, the type of practice, and the individual needs of a particular client. Lawyers must exercise their professional judgment in adopting specific cloud-based services, just as they do when choosing and supervising other types of service providers, and specific requirements would do little to assist the exercise of professional judgment. It is possible, however, to provide some guidance.

Lawyers should have “at least a base-level comprehension of the technology and the implications of its use.” While attorneys are not required to understand precisely how the technology works, competence requires at least a cursory understanding of the technology used. Such a cursory understanding is necessary to explain to the client the advantages and risks of using the technology in the representation.

Lawyers should understand the importance of computer security, such as the use of firewalls, virus and spyware programs, operating systems updates, strong passwords and multifactor authentication,41 and encryption for information stored both in the cloud and on the ground. Lawyers should also understand the security dangers of using public Wi-Fi and file sharing sites.

Lawyers who outsource cloud-computing services should understand the importance of selecting a provider that uses appropriate security protocols. “While complete security is never achievable, a prudent attorney will employ reasonable precautions and thoroughly research a cloud storage vendor’s security measures and track record prior to utilizing the service.” Knowing the qualifications, reputation, and longevity of the cloud-service provider is necessary, just like knowing the qualifications, reputation, and longevity of any other service provider. (footnotes omitted)

EF-15-01 Cont’d

Lawyers should read and understand the cloud-based service provider’s terms of use or service agreement.

Lawyers should also understand the importance of regularly backing up data and storing data in more than oneplace.

Lawyers who do not have the necessary understanding should consult with someone who has the necessary skill and expertise, such as a technology consultant, to help determine what efforts are reasonable.

Lawyers should also consider including a provision in their engagement agreements or letters that, at the least, informs and explains

the use of cloud-based services to process, transmit, store and access information. Including such a provision not only gives the client

an opportunity to object, but it also provides an opportunity for the lawyer and client to discuss the advantages and the risks.

(footnotes omitted)

Scenario Seven

• Lawyer is representing client in negotiating the purchase of a smallbusiness. Lawyer is contacted by an individual who tells Lawyer thathe is the seller’s “representative” (actually a friend of the seller who has An MBA) who tells Lawyer he is not to contact seller anymore butrather work through the “representative”.

• Must attorney work through “representative”? Does the Lawyer

violate any rule if he refuses? Does he violate any rule if he accedes?

SCR 20:4.2

(a)In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has theconsent of the other lawyer or is authorized to do so by law or a court order.

SCR 23.01 Definition of Practice of LawThe practice of law in Wisconsin is the application of legal principles and judgment withregard to the circumstances or objectives of another entity or person(s) where there is aclient relationship of trust or reliance and which require the knowledge, judgment, and skill of a person trained as a lawyer. The practice of law includes but is not limited to:

(1) Giving advice or counsel to others as to their legal rights or the legal rights or responsibilities of others for fees or other consideration.

(2) Selection, drafting, or completion for another entity or person of legal documents or agreements which affect the legal rights of the other entity or person(s).

(3) Representation of another entity or person(s) in a court, or in a formal administrative adjudicative proceeding or other formal dispute resolution process or in an administrative adjudicative proceeding in which legal pleadings are filed or a record is established as the basis for judicial review.

(4) Negotiation of legal rights or responsibilities on behalf of another entity or person(s).(5) Any other activity determined to be the practice of law by the Wisconsin Supreme Court.

SCR 20:5.5

(a) A lawyer shall not:(1) practice law in a jurisdiction where doing so violates the regulation

of the legal profession in that jurisdiction except that a lawyer admitted to practice in Wisconsin does not violate this rule by conduct in another jurisdiction that is permitted in Wisconsin under SCR 20:5.5 (c) and (d) for lawyers not admitted in Wisconsin; or

(2) assist another in practicing law in a jurisdiction where doingso violates the regulation of the legal profession in that jurisdiction.

New York State Ethics Op. 809

The situation before us is quite different. Here we have a lawyer who is representing his or her client in a transaction. Through no fault and no act by, and no encouragement from, the lawyer (or the client), the lawyer finds that the counter-party has chosen to engage a non-lawyer to carry out the transaction. This situation was not caused by the lawyer in any way. Further, the lawyer's actions in continuing with the transaction are intended to serve the lawyer's client, not to facilitate the non-lawyer in UPL. The lawyer is not substantially enabling the non-lawyer's engaging in UPL nor is that incidental result intended by the lawyer. Of course, the lawyer must not encourage the non-lawyer to engage in UPL (see EC 3-8) and must not steer business to the non-lawyer.

We do not believe that merely continuing to represent one's own client-in a transaction into which a third party, not under the lawyer's (or client's) control, has chosen to introduce a non-lawyer who is engaging in UPL- is aiding that non-lawyer in UPL. Absent any affirmative intent or desire to substantially assist the non-lawyer in UPL, or some direct financial or other benefit to the lawyer from the non-lawyer's engaging in UPL (other than the ordinary benefit arising from completing the transaction for which the lawyer was engaged), the lawyer is not aiding UPL. All the lawyer is doing is representing a client; the incidental effect of that proper act is that the non-lawyer is able to engage in UPL.

Scenario Eight

• Lawyer is representing client in purchase of business from another party. Lawyer is working through counsel for other party to negotiatethe terms of the transaction. Lawyer has sent four e-mails to attorneyfor other party asking for an update regarding the position of his clienton the proposed sale terms. Lawyer has received no response fromcounsel representing other party and Lawyer’s subsequent phone calls have not been returned. Time is of the essence.

• May attorney contact the selling party directly?

SCR 20:4.2

(a)In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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 to do so by law or a court order.

Scenario Nine

• Lawyer is asked to represent Boyfriend on a criminal charge. Lawyer asks for advanced fee of $5000, and Girlfriend (who is not involved in the matter in any way) pays lawyer advanced fee. Lawyer provides Boyfriend and Girlfriend with a copy of his standard engagement agreement. About two weeks later, after very little work has been done on the case, Girlfriend contacts Lawyer, states that she has ended her relationship with Boyfriend and demands her money back. Lawyer contacts Boyfriend who tells Lawyer that he wants a different Lawyer and wants the money given to him instead.

• What should Lawyer do?

SCR 20:1.8

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client gives informed consent or the attorney is appointed at government expense; provided that no further consent or consultation need be given if the client has given consent pursuant to the terms of an agreement or policy requiring an organization or insurer to retain counsel on the client's behalf;

(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by SCR 20:1.6.

SCR 20:1.16

(d) Upon termination of representation, a lawyer shall take steps to theextent reasonably practicable to protect a client's interests, such asgiving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that hasnot been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Scenario Ten

• Lawyer represents two individuals who are jointly pursuing the purchase of a business. Attorney has clearly disclosed the potential risks that arise when jointly representing more than one client. Client A discloses his intention to immediately sell his interest to another party after the transaction is completed but tells Lawyer not to disclose this information to Client B because Client B would not go through with the transaction if she knew.

• What must the attorney do?

SCR 20:1.6

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c).

(b) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another.

(c) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably likely death or substantial bodily harm;

(2) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(3) to secure legal advice about the lawyer's conduct under these rules;

(4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(5) to comply with other law or a court order.

SCR 20:1.4

(a) A lawyer shall:(1) Promptly inform the client of any decision or circumstance with respect to which the

client's informed consent, as defined in SCR 20:1.0(f), is required by these rules;(2) reasonably consult with the client about the means by which the client's objectives

are to be accomplished;(3) keep the client reasonably informed about the status of the matter;(4) promptly comply with reasonable requests by the client for information; and(5) consult with the client about any relevant limitation on the lawyer's conduct when

the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.


Absent an express agreement among the lawyer and the clients that satisfies the “informed consent” standard of Rule 1.6(a), the Committee believes that whenever information related to the representation of a client may be harmful to the client in the hands of another client or a third person,12 the lawyer is prohibited by Rule 1.6 from revealing that information to any person, including the other client andthe third person, unless disclosure is permitted under an exception to Rule 1.6. Whether any agreement made before the lawyer understands the facts giving rise to the conflict may satisfy “informed consent” (which presumes appreciation of “adequate information” about those facts) is highly doubtful. In the event the lawyer is prohibited from revealing the information, and withholding the information from the other client would cause the lawyer to violate Rule 1.4(b), the lawyer must withdraw from representing the other client under Rule 1.16(a)(1).

Scenario Eleven

• Lawyer is contacted by salesman for website “Complete Attorneys.” The website is not owned by lawyers and is not connected to a law firm, but advertises on the web as a service that “connects you with the right attorney.” Customers of the website are not charged anything, but are asked to describe their legal problem and are then referred to an attorney in their geographical area. Lawyers who want to participate are charged a flat fee for a year long subscription and information from every person who contacts the website in the lawyer’s geographical location. The lawyer and prospective client are free to enter into a lawyer-client relationship if they choose. Lawyer eagerly accepts and pays the subscription fee.

• Is lawyer subject to discipline?

ABA Model Rule 7.2

[5]… Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See also Rule 5.3 (duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.4(a) (duty to avoid violating the Rules through the acts of another).

2014 Indiana Private Reprimand Summary Indiana attorney, who is exclusive licensee for legal services offered in Indiana by Arizona

motorcycle injury lawyers association, and who has exclusive right to use association's trademarked “Law Tigers” name and other marks in Indiana, engaged in attorney misconduct, in violation of Rule 7.1 and prior Rule 7.2(d) of Indiana Rules of Professional Conduct, as result of his affiliation with association's website, since rules in question prohibit misleading communications regarding statistical data, testimonials and information based on past performances, and website offers search function identifying attorney and his firm as exclusive “Law Tigers” source for legal services in Indiana, and features “settlements and verdicts” page showing examples of results by “Law Tigers” lawyers, with links to “client testimonials,” since average viewer would not differentiate between attorney and statements about “Law Tigers” on association's website, even though attorney's own website provides disclaimers regarding content of “Law Tigers” website, and since attorney thus is responsible for objectionable content on association's website; private reprimand is appropriate discipline in view of mitigating factors, including absence of prior disciplinary history, attorney's due diligence in attempting to determine whether his relationship with association would violate any professional conduct rule, and disclaimers on attorney's website.

Scenario Twelve

• Lawyer is hired as in-house counsel for medium sized company. At time of employment, company owners ask attorney to sign non-compete agreement prohibiting Lawyer from working for any other company in the same business for a period of two years after departing employment with the company.

• May Lawyer sign this agreement?

SCR 20:5.6

A lawyer shall not participate in offering or making:(a) a partnership, shareholders, operating, employment, or other

similar type of agreement that restricts the right 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 client controversy.

New Jersey Ethics Op. 708

• Post-Employment Restrictions. As mentioned above, the overwhelming majority of jurisdictions in the United States follow the ABA's approach and hold that restrictive covenants affecting lawyers, whether employed by corporations or private law firms, generally violate state ethical standards. Several jurisdictions have found that non-compete agreements designed to protect against the disclosure of a corporation's confidential information and trade secrets are superfluous, due to a lawyer's overriding obligation to maintain client confidentiality.

• As for New Jersey, we last spoke on this issue in 1969 in Opinion 147, supra, 92 N.J.L.J. 177. Thirty-seven years later, the views expressed then retain their vitality and persuasiveness. The New Jersey Supreme Court has consistently taken the same position. Although our Supreme Court in Maw recently recognized the increasing importance of restrictive covenants in the commercial world, the Court subsequently reaffirmed the importance of the Jacob ban on restrictive covenants for the legal profession. Community Hosp. Group, Inc. v. Moore, 183 N.J. 36 (2005).

• The fact that the restrictive covenant agreement in question arises in the corporate context, rather than within a law firm, is of no moment. The Court Rules make clear that in-house counsel in New Jersey, whether licensed by this State or not, are bound to follow our Rules of Professional Conduct, including RPC 5.6. And the result we reach is consistent with every other state and local committee that has looked at the applicability of this rule to in-house lawyers. Va. St. Bar Conn. Op. LEO#1650, supra; Ill. St. Bar Ass'n, Advisory Op. on Prof. Conduct, Op. No. 92-14, supra; Conn. Bar Ass'n Comm. on Prof. Ethics, Information Op. No. 02-05, supra; Wash. St. Bar Ass'n, Informal Op. No. 2100, supra; Phila. Bar Ass'n, Prof. Guidance Com., Guidance Op. No. 96-5, supra; Wash. D.C. Bar Ass'n, Op. 291, supra.

Scenario Thirteen

• Lawyer’s marketing consultant has suggested that Lawyer increase her online visibility by getting more clients to rate her on websites like Avvo. Lawyer would like to offer clients a $50 credit on their legal bills to provide voluntary, honest and independently generated reviews of the lawyer's services on websites such as Avvo.

• May Lawyer do so?

SCR 20:7.2

(b) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may:

(1) pay the reasonable cost of advertisements or communications permitted by this rule;

(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;

New York State Ethics Op. 1052Rule 7.2(a) does not apply because the inquirer is asking for a rating, not a recommendation. The inquirer says he will give a $50 credit to any client who rates the lawyer, without regard to the content of the rating and without regard to whether the client recommends the lawyer to others. A client thus remains free to give the lawyer a bad rating and remains free not to check the box saying that she would recommend the lawyer to others. Moreover, the inquirer is not making the $50 credit contingent on whether some future person retains the lawyer as a result of the rating. Thus, the credit is not a “reward” for making a recommendation “resulting in employment by a client.”

…

CONCLUSION

14. A lawyer may give clients a $50 credit on their legal bills if they rate the lawyer on an Internet website such as Avvo that allows clients to evaluate their lawyers, provided the credit against the lawyer’s bill is not contingent on the content of the rating, the client is not coerced or compelled to rate the lawyer, and the ratings and reviews are done by the clients and not by the lawyer.

Scenario Fourteen

• Lawyer represents plaintiffs in personal injury cases. Recently, Lawyer has been asked, as a condition of settlement, to personally indemnify the opposing party and counsel from any and all claims by third persons, such as hospitals, health care providers, Medicare and Medicaid, and workers’ compensation insurers.

• Is Lawyer subject to discipline for entering into such an agreement?

• Is opposing counsel subject to discipline for proposing or demanding that Lawyer enter into such agreement?

SCR 20:1.8

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and

expenses of litigation on behalf of the client.

Wisconsin Ethics Op. E-87-11

Neither the Code nor Rules expressly or, in the committee’s opinion, implicitly sanctions the usage of such indemnification and holdharmless provisions. In summary, we conclude that a lawyer’s participating in settlement agreements incorporating such provisions would constitute a prohibited acquisition of a financial (although potentially negative) interest in the cause of action or subject matter of the litigation that the lawyer is conducting, as well as an improper advance of financial assistance to a client. See SCR 20.26 and SCR 20:1.8(e) and (j).

Scenario Fifteen

• Lawyers works in a small law firm and represents Client charged with homicide. Lawyer comes back to office one day and secretary tells lawyer that young man stopped by and left a cell phone for Lawyer. Young man stated that cell phone belonged to Client and that he heard the police were looking for it. Lawyer is aware that police were looking for cell phone because it contained text messages that might be relevant to the investigation.

• What should lawyer do?

SCR 20:3.4

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;

COMMENT[2] 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 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. Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances.

Restatement (Third) of the Law Governing Lawyers § 119 (2000)

With respect to physical evidence of a client crime, a lawyer:

(1) may, when reasonably necessary for purposes of the representation, take possession of the evidence and retain it for the time reasonably necessary to examine it and subject it to tests that do not alter or destroy material characteristics of the evidence; but

(2) following possession under Subsection (1), the lawyer must notify prosecuting authorities of the lawyer's possession of the evidence or turn the evidence over to them.

Scenario Sixteen

• Lawyer hires marketing firm for advice with respect to expanding his practice. Marketers tell Lawyer to use mass texting service to reach prospective clients. Lawyer does so. Lawyer’s colleague is concerned that firm is now engaged in a prohibited form of solicitation.

• Is Lawyer engaged in prohibited “real-time electronic contact” with

potential client?

SCR 20:7.3

(a) A lawyer shall not by in-person or live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

(1) is a lawyer; or(2) has a family, close personal or prior professional relationshipwith the lawyer.

Philadelphia Ethics Op. 2010-06

Thus, the Committee concludes that Rule 7.3 does not bar the use of social media forsolicitation purposes where the prospective clients to whom the lawyer’s communicationis directed have the ability, readily exercisable, to simply ignore the lawyer’s overture,just like they could a piece of directed, targeted mail. Where that is the case thoserisks which might be inherent in an individualized, overbearing communicationare not sufficiently present to bar the use of such methods of social interaction for anysolicitation purposes. Under this view of Rule 7.3, “real-time electronic communication”is limited to electronic modes of communication used in a way in which it would besocially awkward or difficult for a recipient of a lawyer’s overtures to not respond in realtime. The Committee also concludes that even on line chat rooms of the sort wherediscussion occurs by typed communications do not constitute real-time electronicmedia.

Ohio Ethics Op. 13-02Prof. Cond. R. 7.2 allows lawyers to use text messages to solicit professional employment from Prospective clients. However, text message solicitations must also comply with Prof. Cond. R. 7.1 and 7.3 and all applicable federal and state laws, rules, and regulations.

If solicitation:

• The text message cannot create a ‚”real-time” interaction similar to an internet chat room; the text message may not involve coercion, duress, or harassment, and the lawyer must abide by a person’s request not to receive solicitations;

• If the lawyer has a reasonable belief that the prospective client is in need of legal services in a particular matter, the text message must state how the lawyer learned of the need for legal services, include the language ‚”ADVERTISING MATERIAL” OR ‚”ADVERTISEMENT ONLY” at both the beginning and ending of the message, and cannot offer a case evaluation or prediction of outcome;

• If the prospective client is a defendant in a civil case, the lawyer shall verify that the person has been served; and

• Text message solicitations sent within 30 days of an accident or disaster must include, in the body of the text message, the entire ‚”Understanding Your Rights” statement contained in Prof. Cond. R. 7.3(e).

Scenario Seventeen

• Lawyer resides in Wisconsin but is only licensed to practice in the State of Illinois and is a member of a firm located in Chicago. Lawyer works from home four days a week using internet connection and web portal to law firm located in Illinois.

• Is lawyer engaged in the unauthorized practice of law in Wisconsin?

SCR 20:5.5

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:(1) except as authorized by this rule or other law, establish an office or maintain a systematic and continuous presence in this jurisdiction for the practice of law; or(2) hold out to the public or otherwise represent that the lawyer is admitted to the

practice of law in this jurisdiction.

[4] Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1(a) and 7.5(b).

Scenario Eighteen• While practicing at Good Law Firm, Lawyer helped form Company and then spent about 30

percent of his time from 2007 to 2010 representing Company in employment matters. During that time Lawyer formulated many of Company’s employment policies, but his representation of Company ended in 2010.

• In late 2014, Lawyer joins Best Law Firm. A partner who knows nothing about a possible “playbook” conflict undertakes representation of three former Company executives. These former executives are forming a competing business.

• Company engages Good Law Firm to file a declaratory judgment action against the former

executives. The partner of Best Firm files an appearance on behalf of the former executives. Good Law Firm believes that Best Law Firm has a conflict of interest and should be disqualified.

• Does Best have a conflict?

SCR 20:1.9, Comment

[3] Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

ABA Formal Op. 99-415, Former In-house Counsel Adverse to Former Employer• Conclusion• A former in-house lawyer may, without obtaining consent from the former client, represent a client in a matter that

is materially adverse to the lawyer's former employer unless during the course of the lawyer's employment by the organization either the lawyer personally had represented the employer in the same matter or in a substantially related matter or another member of the organization's legal department had done so and the former in-house lawyer had acquired protected information material to the new matter.

• The fact that the lawyer had represented his former employer in similar types of matters or that the lawyer had gained a general knowledge of the strategies, policies, or personnel of the former employer is not sufficient by itself to establish a substantial relationship between the current matter and matters in the legal department at the organization for purposes of Rule 1.9(a). Moreover, general supervisory responsibility such as that exercised by the head of a legal department ordinarily is not by itself sufficient to establish that a lawyer represented his former employer in a particular matter even if it is the same as or substantially related to a matter at the new firm.

• The Committee nevertheless is of the opinion that an in-house lawyer may, in the course of his employment as in-house counsel, gain such sensitive information concerning matters in which the legal department represented the organization that is material to the subsequent representation as to be disqualified from subsequent representation under Rules 1.9(a) or 1.9(b) or prohibited from disclosing that information under Rule 1.9(c).

Restatement of the Law Governing Lawyers, §132, comment (d) Thus, a lawyer may master a particular substantive area of the law while

representing a client, but that does not preclude the lawyer from later representing another client adversely to the first in a matter involving the same legal issues, if the matters factually are not substantially related. A lawyer might also have learned a former client's preferred approach to bargaining in settlement discussions or negotiating business points in a transaction, willingness or unwillingness to be deposed by an adversary, and financial ability to withstand extended litigation or contract negotiations. Only when such information will be directly in issue or of unusual value in the subsequent matter will it be independently relevant in assessing a substantial relationship.

Scenario Nineteen

• Law Firm occasionally has more work than it can handle, and decides to hire Contract Lawyer to do some piece work from time to time. Contract Lawyer has his own law firm and has no connection to Law Firm other than a few discrete pieces of contract work now and then. Managing partner of Law Firm lists Contract Lawyer on website and letterhead as “of counsel” to the firm.

• Is managing partner of Law Firm subject to discipline?

OLR Public Reprimand 2009-7

Attorney L violated SCR 20:7.5(d), which states, “Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact...” and SCR 20:8.4(a), which states, “It is professional misconduct for a lawyer to… 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…” by engaging in a course of conduct in which she and her Firm held her husband out as an employee, associate or partner of her firm and allowed him to hold himself out as of counsel to the Firm, when he was a contract attorney independent of the Firm at all relevant times.


To turn from consideration of the circumstances where use of the titles under discussion is or is not proper and address the ethical implications of and limitations on their use, the most important implication has already been adverted to. There can be no doubt that an of counsel lawyer (or firm) is ‘associated in’ and has an ‘association with’ the firm (or firms) to which the lawyer is of counsel, for purposes of both the general imputation of disqualification pursuant to Rule 1.10 of the Model Rules and the imputation of disqualifications resulting from former government service under Rules 1.11(a) and 1.12(c); and is a lawyer in the firm for purposes of Rule 3.7(b), regarding the circumstances in which, when a lawyer is to be a witness in a proceeding, the lawyer’s colleague may nonetheless represent the client in that proceeding. Similarly, the of counsel lawyer is ‘affiliated’ with the firm and its individual lawyers for purposes of the general attribution of disqualifications under DR 5-105(D) of the Model Code. See Formal Opinion 330; Formal Opinion 84-351.

Scenario Twenty

• Lawyer represents the plaintiff who was injured in a car accident caused by faulty mechanical repairs. Lawyer hires expert witness to inspect car. Lawyer receives a call from expert who states that she was contacted by opposing counsel. Expert states that she spoke briefly to opposing counsel but did not share any of her findings. Lawyer is furious and calls opposing counsel, accusing him of “unethical” conduct.

• Is Opposing Counsel subject to discipline?

SCR 20:4.2

(a)In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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 to do so by law or a court order.

Wisconsin Formal Ethics Op. E-83-13

As a general rule, attorneys for one party in a pending cause of action are free to interview the intended witnesses, including expert witnesses, of the opposing party without the consent or presence of opposing counsel.


Therefore, Formal Opinion E-83-13 is modified by Klieger v. Alby’s holding regarding communications ‘‘with a plaintiff’s treating physician.’’ 125 Wis. 2d 468, 469. However, regarding ex parte communications with expert witnesses whose communications with a party or a party’s counsel would not be protected by a similar legal privilege, the committee reaffirms E-83-13 but cautions lawyers making these communications to ‘‘first explain his or her role in the matter and then exercise reasonable care to refrain from seeking privileged information,’’ if any privilege applies.

ABA Formal Op. 93-378

• None of these Model Rules, or their predecessors in the Model Code, establishes an automatic bar to lawyers initiating contact with the opposing parties' experts. Rule 4.2 only prohibits a lawyer from communicating with a party who is represented by another lawyer in the matter without consent. No Model Rule extends this protection to witnesses or explicitly treats expert witnesses differently from fact witnesses.

…• In addition, as noted above, Rule 3.4(c) requires a lawyer to conform to the rules of a tribunal

before which a particular matter is pending, and it is under this Rule that the matter of expert witnesses comes into particular focus. The rules of procedure of many tribunals contain specific and exclusive procedures for obtaining the opinions, and the bases therefor, of the experts who may testify for the opposing party. The leading rule in this regard is Fed.R.Civ.P.Rule 26(b)(4)(A), which sets forth a two-step process that must be followed in order to obtain discovery of facts and opinions held by an adversary's expert who is expected to testify at trial: first, written interrogatories are to be served; second, if additional discovery is desired, leave of courtmust be obtained.