Oct. 17, 2018 – Lawyers are often asked to act in roles outside the traditional lawyer-client relationship. When acting in roles such as guardian, mediator, or trustee, do the Rules of Professional Conduct apply?

Question

I’ve practiced elder law for some time, and recently I’ve been asked to serve as the guardian for a person who has never been my client. I know guardianship law well and understand my responsibilities under the statutes, but wonder what my responsibilities under the Rules of Professional Conduct (the Rules) would be in this role. I would not have a “client” in the traditional sense but would owe duties to another person.

How do the Rules apply when a lawyer is acting in a role such as guardian?

Answer

This question is based upon the recent disciplinary decision Disciplinary Proceedings against Steffes.¹

In that case, the respondent lawyer consented to the revocation of his law license based primarily on his conduct while acting as a guardian rather than a lawyer. According to the decision, Steffes had been appointed as guardian for an individual in 1975, and over time misappropriated the funds of the ward, failed to file annual reports and accountings, failed to abide by court orders, and failed to cooperate with the Office of Lawyer Regulation’s (OLR) investigation of the matter.

While a lawyer who abuses their fiduciary position to misappropriate funds is nothing new, the application of certain Rules in this matter is noteworthy. The decision states, in relevant part:

On September 29, 2017, the OLR filed a complaint against Attorney Steffes based on the foregoing alleging six counts of professional misconduct. The complaint alleged that by providing his ward with cash payments contrary to the purpose of the guardianship, which was to ensure that R.S.' assets would be used to meet his essential needs of health and safety, Attorney Steffes violated SCR 20:1.1 (Count 1); by failing to file annual accounts and annual reports of his ward's condition from 2010 through 2014, and by failing to monitor his ward's bank account resulting in the wasting of the ward's assets, Attorney Steffes violated SCR 20:1.3 (Count 2).

The two Rules referenced in counts one and two read as follows:

SCR 20:1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

SCR 20:1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

Note that these Rules require competence and reasonable diligence in representing a client, yet Steffes had no “client” and was not acting as a lawyer.

Do the Rules Apply 24/7?

Most lawyers have heard that they are bound by the Rules “24/7.” What is meant by this is that as long as a lawyer has a law license, certain Rules will apply.

For example, SCR 20:8.4(b), which states that it is misconduct to commit a crime that reflects adversely on one’s fitness as a lawyer applies whether or not the crime was committed in the course of representing a client.²

Many of the Rules, however, are explicitly connected to the lawyer-client relationship such as SCRs 20:1.1 and 20:1.3. Yet in the Steffes decision, these Rules were applied to a lawyer who had a ward, but not a client in the traditional sense.

Lawyers often take on roles that result in duties owed to third parties but are not the traditional lawyer-client relationship, such as trustee or personal representative. There are bodies of law that regulate these roles outside the Rules, but some are less regulated.

Consider mediators, for whom there are no rules of conduct in Wisconsin. Could lawyers who are acting as mediators be found to owe duties of competence under SCR 20:1.1?³ Could a lawyer who is acting as a trustee under Chapter 128 of the Wisconsin statutes be found to have been acting under a former client conflict of interest under SCR 20:1.9(a)? Could a trustee be found to have violated a duty of communication under SCR 20:1.4?

There are some things about the Steffes decision worth noting. First, it was a consensual petition for license revocation pursuant to SCR 22.19, so all the Rule violations were stipulated, and it remains to be seen what the court would do if presented with arguments that Rules such as SCR 20:1.1 apply outside the lawyer-client relationships. Second, there are relatively few disciplinary matters involving lawyers acting in roles other than lawyer, and the facts were egregious, so it may be the case that Steffes is an outlier.⁴

Most lawyers are conscientious and diligent in whatever professional role they assume, but for lawyers who assume roles such as guardian, the Steffes decision is worth noting.

Endnotes

¹ 2018 WI 31, 380 N.W. 674.

² Thus, a lawyer may be on inactive status and working in another profession and still be governed by Rules such as SCR 20:8.4(b).

³ Lawyers who act as mediator-drafters pursuant to SCR 20:2.4(c) already owe duties of competence and diligence in their drafting role per the Wisconsin Comment to the Rule.

⁴ I could not locate other cases from Wisconsin applying the Rules in a similar manner.