Oct. 20, 2021 – With the start of the New Year are changes to disciplinary rules that affects conflicts in public defenders’ office. Do they apply to you?

Question

I am a supervisor in a Public Defender’s Office. I heard there was a recent change to the disciplinary rules that affects conflicts in public defenders’ office.

Is this true and if so, how will it affect how we handle conflicts?

Answer

On Oct. 6, 2021, the Wisconsin Supreme Court issued Rules Order 21-01, which granted a rules petition filed jointly by the State Bar of Wisconsin’s Standing Committee on Professional Ethics and the State Public Defender’s Office^1​ requesting the court amend SCR 20:1.0 and SCR 20:1.10.

The petition was the result of discussion over many months between the Public Defender’s Office and the Ethics Committee seeking to determine whether SCR 20:1.11, which governs conflicts for current and former government lawyers, fit the policies and practices of the Public Defender’s Office, or whether changes to the disciplinary rules were warranted.

About the Order

SCR 20:1.11 generally permits greater latitude with respect to conflicts for lawyers leaving and entering government service. Subsection (f), which was adopted in 2007, states that conflicts are not imputed in government law offices.

SCR 20:1.11, however, is designed primarily for lawyers who represent entity clients, such as cities or state agencies, rather than individuals through the Public Defender’s Office. In this important respect, the Public Defender’s Office differs from most other government law firms.

Consequently, the Public Defender’s Office followed procedures more in line with the imputation of conflict provisions set forth in SCR 20:1.10, which governs conflicts in private law firms, and the rules petition was designed to make the requirements of the disciplinary rules more accurately reflect this reality.

The New Rules

A detailed explanation of the reasons these changes were jointly proposed by the Public Defender’s Office and State Bar can be found in the supporting memo filed with the court.

The new rules become effective Jan. 1, 2022.

The court’s order first creates a new subsection to SCR 20:1.0, the “Definitions” rule:

(er) A "government lawyer" includes a "prosecutor" as defined by SCR 20:1.0(j) and any lawyer who represents a governmental actor or entity and is employed by a governmental entity. It does not include an attorney employed as a public defender or a private attorney contracted to represent a governmental agency.

The Wisconsin Committee Comment explains the rationale for the new definition:

2022 WISCONSIN COMMITTEE COMMENT

Supreme Court Rule Chapter 20 treats conflicts of interest differently for government and non-government lawyers but does not clearly define who is a government lawyer. Subsection SCR 20:1.0 (er) defines government lawyer but excludes two groups – public defenders and private attorneys contracted to represent a government agency. Conflicts of interest for government lawyers are addressed by SCR 20:1.11 whereas imputation of conflicts of interest for private lawyers and public defenders are addressed by SCR 20:1.10.

Excluding attorneys employed by the state and federal public defender or private attorneys contracted to represent a governmental agency from the definition of "government lawyer" is limited to the Rules of Professional Conduct for Attorneys, SCR Chapter 20, and should not be construed to apply to any definition of "government lawyer" outside of this chapter.

Second, a new subsection of SCR 20:1.10 and accompanying Wisconsin Committee Comment is created:

(a)(3) The prohibition arises under SCR 20:1.9 and the conflict arises within the public defender agency and

(i) the personally disqualified lawyer is timely screened from any participation in the matter; and

(ii) written notice is promptly given to any affected former client to enable the affected client to ascertain compliance with the provisions of this rule.

2022 WISCONSIN COMMITTEE COMMENT

Subsection (3) addresses former client conflicts with public defenders. The rule applies to both state public defenders and federal defenders licensed in Wisconsin. For purposes of this rule, reasonable efforts to notify an affected former client should be deemed in compliance with the requirements of SCR 20:1.10 (a) (2) (iii) and (a) (3) (ii). The definition of "government lawyer" in SCR 20:1.0 (er) makes clear that public defender conflicts are controlled by SCR 20:1.10 (a) (3) rather than SCR 20:1.11 (f). Pursuant to SCR 20:1.0 (d), the committee views the state public defenders and federal defenders as statewide law firms for purposes of applying this rule.

This provision gives public defender offices more latitude in screening² conflicts than private firms, as private firms cannot screen for former client conflicts arising within the firm, which is a middle ground between the freely permitted screening of other government law offices and the more restrictive rules for private law firms.

New Rules Apply Only to Public Defenders

It should be noted that these changes ONLY affect state and federal public defenders, and do not affect the current rules governing other government lawyers in any way. In fact, the rules changes simply align the disciplinary rules with current practice in public defender offices.

While these rule changes directly affect only state and federal public defenders, many lawyers are involved in the criminal justice system, and should be aware of these new rules that take effect on Jan. 1, 2022.

Endnotes

¹ Federal Defender Services of Wisconsin were also consulted throughout the process and had no objection to the proposed changes.

² ​See SCR 20:1.0.(n).​