Ethics Opinions

Opinions and advice of the Professional Ethics Committee, its members and assistants, are issued pursuant to State Bar Bylaws, Article IV, Section 5. Opinions and advice are limited to the facts presented, are advisory only and are not binding on the courts, the Board of Attorneys Professional Responsibility or members of the State Bar of Wisconsin.

Members who desire an ethics opinion should address requests to: State Bar Professional Ethics Committee, P.O. Box 7158, Madison, WI 53707-7158. The identities of parties involved in requests for opinions will not be revealed in published opinions.

Members also can contact Keith Kaap, State Bar ethics consultant, on the ethics hotline for assistance. Kaap can be reached at the State Bar Center, (800) 362-8096 or (608) 257-3838 ext. 6168, on Fridays, 8 a.m. to 5 p.m. Kaap is available other weekdays from 8 a.m. to noon at (608) 629-5721 (after noon, leave a message, and he'll call back the next business-day morning).

E-96-2: Attorney's Responsibilities
When Client Cannot Be Located

Question

We represent a personal injury plaintiff whom we are unable to contact. We have pursued numerous leads in an effort to learn our client's whereabouts to contact him, all of which have proven unsuccessful. What are our responsibilities under these circumstances?

Opinion

The duties of communication and consultation and the duty to follow a client's instructions depend upon knowing a client's whereabouts and how to contact him or her. See SCR 20:1.2(a) and 20:1.4; Olfe v. Gordon, 93 Wis. 2d 173, 286 N.W.2d 573 (1980) (lawyer has general duty to follow specific instructions of client). The committee agrees with ABA Informal Opinion 1467 (Aug. 10, 1981) that a lawyer should make "reasonable inquiry and effort" to learn a client's whereabouts. What is reasonable will vary depending upon the circumstances. If efforts to contact the client are unsuccessful, the lawyer may have no alternative but to seek to withdraw from representation under SCR 20:1.16, taking "steps to the extent reasonably practicable" to protect the client's interests. See SCR 11.02; Sherman v. Heisler, 85 Wis. 2d 246, 270 N.W.2d 397 (1980). Whether this requires the lawyer to file a lawsuit on behalf of the client (and thereby satisfy the statute of limitations) may also depend upon the circumstances. In many circumstances involving a client whose whereabouts are unknown, such filing may be the most cautious course to follow.

E-96-4: Use of Temporary Attorneys in Wisconsin

Question

Under what circumstances may a law firm use temporary or contract attorneys in Wisconsin?

Opinion

The Professional Ethics committee adopts American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 88-356.

Caveat

ABA Formal Opinion 88-356 contains references to the ABA Model Code of Professional Responsibility and the ABA Model Rules of Professional Conduct, which may differ in some respects with the current Rules of Professional Conduct for Attorneys in Wisconsin. The Professional Ethics committee agrees with the reasoning and the conclusions of ABA Formal Opinion 88-356, and adopts it for the purpose of providing guidance to attorneys in Wisconsin. Go to Opinion