Ethics 2000 Committee recommendations synopsis
August 3, 2004
On July 23, Daniel Hildebrand, chair of the Ethics 2000 committee,
presented to the Board of Governors a draft petition and a report
outlining the committee's recommended amendments to Supreme Court
Rules chapter 20, Rules of Professional Conduct for Attorneys. A panel
discussion with representatives from the Legal Assistance,
Professionalism, and Ethics committees followed the presentation.
The Ethics 2000 Committee, comprising 19 lawyer and nonlawyer
members, was created by the Wisconsin Supreme Court to review the
American Bar Association's (ABA) proposed Model Rules changes,
which the ABA House of Delegates considered and adopted in part in
2002.
The State Bar seeks member feedback on the proposed changes, which
the board will consider before voting on the petition. The final
petition and a public hearing date will be published in Wisconsin Lawyer
magazine.
Following is an overview of the committee's recommendations.
Read the committee's report for detailed clarification.
Rule 1.5 Fees. The committee recommends written fee
agreements. Fees of $1,000 or less would be exempt.
Rule 1.6 Confidentiality. The proposal contains the
distinctive exception to the duty of confidentiality that is in the
current rule, arising in certain cases involving client crimes and
frauds. The proposal adopts the model rule exceptions for compliance
with a court order to testify and also for disclosures that
"comply with other law." This change provides a safe harbor
for lawyers against disciplinary action.
Rule 1.8 Conflicts of interest: prohibited transactions. The
committee recommends deletion of the insurance defense exception to the
requirement that a client consents to the lawyer's fee being paid
by a third party. Lawyers must clarify their relationships with their
clients.
Rule 1.10 Imputed disqualification: general rule. The
committee proposes that, when a lawyer changes firms, the lawyer's
conflict of interest in a matter will not be imputed to lawyers at the
new firm under certain circumstances. The committee believes this
limited screening rule protects important client interests, while
responding in a fair and practical way to the abuse of disqualification
motions as a litigation strategy.
Rule 1.18 Duties to prospective clients. The committee
recommends that the court adopt this new rule which currently has no
counterpart in chapter 20.
Rule 2.2 Intermediary and Rule 2.4 Lawyer serving as third-party
neutral. The committee recommends that Rule 2.2 be deleted in its
entirety, as it is in the revised model rules, because the issues
addressed by this rule are better dealt with in other rules, including
conflicts of interest rules and new Rule 2.4.
Rule 3.8 Special responsibilities of a prosecutor. The
committee proposes new provisions that clarify what communications are
permissible between a prosecutor and an unrepresented defendant. The
committee believes that a prosecutor should be able to negotiate a plea
with an unrepresented defendant, but the prosecutor should not provide
other legal advice or assistance to the defendant in the process.
Rule 3.10 Threatening criminal prosecution. The committee
recommends deleting this provision. The standards for establishing a
violation of the rule are high, and the facts of individual cases will
often contain sufficient ambiguity to make the rule inapplicable.
Rule 4.1 Truthfulness in statements to others. The committee
proposes new text, which recognizes that prosecutors may advise and
supervise others with respect to lawful undercover investigations
involving deception. The current rules do not address this issue which
leaves such conduct largely unregulated. The change will further ensure
that the rights of suspects will be protected.
Rule 4.5 Guardians ad litem. The committee proposes this new
rule in order that guardians ad litem understand that their conduct is
governed by the rules, even though their responsibilities may differ, in
some respects, from those in the usual representation.
6.1 Pro Bono: Pro bono publico service. The committee
proposes that lawyers be required to file a report annually concerning
their pro bono activities.
Rule 6.5 Nonprofit and court-annexed limited legal services
programs. This new rule, provides limited protection against
disqualifying conflicts of interest for certain legal advice hotlines
and advice-only clinics that qualify.
Rule 7.6 Political contributions to obtain government legal
engagements of appointments by judges. This is a new model rule
designed to prohibit "pay-to-play" practices. The committee
did not see this as a problem in Wisconsin, but believes that the
express prohibition of such practices is sound policy.
Rule 8.4 Misconduct. The committee proposes new text with
the purpose of reinforcing the strong commitment to equal justice under
the law. The proposed text states that lawyers must cooperate in the
investigation of a grievance, and lawyers must not harass a person on
the basis of sex, race, age, creed, religion, color, national origin,
disability, sexual preference or marital status in connection with the
lawyer's professional activities.
