State Bar responds to caucus investigation
Opinion Editorial November 5, 2001
Atty. Dean R. Dietrich Chair,
Professional Ethics Committee,
State Bar of Wisconsin
Ruder, Ware & Michler LLC,
Wausau
Nov. 5, 2001
The ongoing news coverage of the State Caucuses has raised many
questions about the role of the legal profession and the rules of
professional conduct. Lawyers serve as advisors and advocates every day
to help people with a wide range of issues - from resolving child
custody issues, to helping incorporate a business, to protecting
consumer rights, to pursuing and defending criminal allegations. Lawyers
routinely represent parties on both (or several) sides of an issue. In
the case of the caucuses, some lawyers have been called upon to
investigate allegations of misconduct, others are representing potential
witnesses and those under investigation. This balance in representation
is what makes our system work.
A recent editorial in the Wisconsin State Journal asked the State Bar
of Wisconsin to explain an "ethical quandary" regarding a law firm
representing individuals who are conducting an investigation and the
individuals who are the subject of the investigation. As chair of the
Professional Ethics Committee of the State Bar, I welcome the
opportunity to clarify the rules that govern attorney conduct.
Under the Wisconsin Supreme Court Rules of Professional Conduct for
attorneys, a single law firm cannot represent two clients who have
differing interests in a particular matter. As I understand it, that is
why the particular lawyer, when he became aware that another member of
his firm had agreed to represent an opposing party in the matter,
immediately discontinued his representation of one of the parties. He
did the right thing. He was avoiding a potential conflict.
The conflict of interest rules are designed to ensure that a lawyer
will represent his or her client with unrestricted loyalty. They also
ensure that other lawyers in the same law firm will not represent a
client on the other side of the controversy to ensure that the loyalty
of the attorney is strictly devoted to representation of his or her
client. The Supreme Court rules on conflict of interest offer protection
for the client and provide assurances that the attorney will be fully
devoted to representing the interests of that client.
The editorial also raised the question of whether there are any rules
regarding the third-party payment of legal fees. Again, the Wisconsin
Supreme Court Rules of professional conduct for attorneys addresses this
issue and assures the independence of the attorney to fully and
adequately represent the interests of the client involved regardless of
who is paying the fees charged by the attorney.
Under these rules, a lawyer may represent a client but receive
payment for the legal services rendered to that client from a
third-party provided the third-party does not, in any way, interfere
with the lawyer's independence of professional judgment or with the
client-lawyer relationship that has been established.
Furthermore, a third party can (and often does) pay the cost of legal
representation for a particular individual; however, that individual has
a protected attorney-client relationship with the attorney involved. The
attorney must devote his or her attention to the representation of the
individual and cannot be influenced about decisions relating to the
representation by the person paying the fees. This rule applies whether
the third-party paying the fees is an insurance company, an employer, a
public entity, or even a parent.
The Wisconsin Supreme Court has adopted these, and many other rules,
to ensure the professional conduct of attorneys licensed to practice law
in the State of Wisconsin. The rules are designed to give guidance to
the attorney on the appropriate standards of conduct, and ultimately, to
protect the public. The Supreme Court
Rules and information about the State
Bar's Ethics Committee are available online.
