Wisconsin
Lawyer
Vol. 80, No. 9, September
2007
Lawyers Must Ensure Clients Do Not Use Legal
Services
for Inappropriate Purposes
by Dean R. Dietrich
It is well-recognized that the client makes decisions regarding the
outcome of a representation, such as settlement, and the lawyer decides
the strategy to be used
in the representation to achieve that outcome. See SCR
20:1.2(a). Lawyers, however, should not allow their representation of a
client to reach a point where the
client is using the lawyer's services to create a fraud on the court
or another party.
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau,
is chair of the State Bar Professional Ethics Committee.
The Rules of Professional Conduct require lawyers to advise clients
if the client is asking the lawyer to take steps that are prohibited by
the Rules of
Professional Conduct or constitute a fraud or misrepresentation on the
court. SCR 20:1.2(d) provides that "a lawyer shall not counsel
a client to engage, or assist a client,
in conduct which the lawyer knows is criminal or fraudulent, but a
lawyer may discuss the legal consequences of any proposed course of
conduct with a client and
may counsel or assist a client to make a good faith effort to determine
the validity, scope, meaning or application of the law."
Lawyers also must advise clients if the action requested of the
lawyer is contrary to the lawyer's ethical obligations. SCR 20:1.4(a)(5)
provides that a lawyer
shall "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." In addition, lawyers may
not "advance a claim or defense that is unwarranted under existing
law" under SCR 20:3.1 and
"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" as outlined in SCR 20:4.4.
It is difficult to balance the lawyer's duty of advocacy and
representation of the client with the obligation to ensure that the
lawyer's services are not being used
for inappropriate purposes. In some instances, a lawyer may need to
withdraw from representing a client. Under SCR 20:1.16, a lawyer
may withdraw
from representing a client under limited circumstances provided the
withdrawal does not harm the client due to the stage of the proceedings.
Court approval may
be required to withdraw from representation in litigation matters.
Some people suggest that the duty of zealous representation requires
that the lawyer advocate the client's position as expressed by the
client without regard to
the propriety of the position being advocated for. The duty of zealous
representation does not apply when the position advocated is potentially
a violation of the Rules
of Professional Conduct.
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