Question

I have received some emails recently from opposing counsel that are personal attacks on me or my client. Are there any rules that prevent this?

Answer

There is no specific rule that addresses lawyer behavior when sending an email to another lawyer or another person. Some rules address lawyer conduct in a general way that may be violated based on the lawyer’s behavior.

SCR 20:4.4(a) of the Wisconsin Rules of Professional Conduct speaks generally to lawyer conduct and provides that a lawyer must not use means or tactics that are designed solely to embarrass or create a burden for another person. This rule provides as follows:

SCR 20:4.4(a) Respect for rights of 3rd persons. (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a 3rd person, or use methods of obtaining evidence that violate the legal rights of such a person.

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While the language in this rule is very focused on certain types of behavior, it could form the basis for some type of discipline involving the inappropriate conduct of a lawyer. Several lawyers have been disciplined recently for their inappropriate behavior in using email communications to others. These incidents include the following:

• Two lawyers were accused of misconduct for participating in an email chain with a group of people who were called “The Forum of Hate.” The two lawyers used offensive terms to refer to minorities and women and participated in email chains mocking officials’ accents and using slurs based on people’s sexual orientation.

• A lawyer was suspended “immediately and until further order of the court” for sending inappropriate emails to opposing counsel and making false claims and “inappropriate diatribes” in pleadings. Another ground for the suspension was the lawyer’s inappropriate attack on an expert witness and the lawyer’s filing of baseless or unnecessary motions.

SCR 20:8.4 might also come into play. SCR 20:8.4(g) provides as follows:

SCR 20:8.4 Misconduct. It is professional misconduct for a lawyer to:

(g) violate the attorney’s oath;…

Under the attorney’s oath, found in SCR 40.15, a lawyer agrees to not engage in offensive behavior. Again, the facts and circumstances of the behavior will determine whether discipline can be issued for violating the attorney’s oath, but this sets some general ground rules for attorney conduct.

It is disappointing that some lawyers have decided to exhibit aggressive or inappropriate language in communicating by email with other lawyers. It is an example of how “professionalism” and “civility” have been tarnished by attorney behavior. Lawyers should strive to engage others in a professional way to countermand this behavior.

It is disappointing that some lawyers have decided to exhibit aggressive or inappropriate language in communicating by email with other lawyers.

Cite to 94. Wis. Law. 33 (January 2021).