Vol. 75, No. 2, February 2002

Supreme Court Orders

• Rules for Prosecutors
• Court of Appeals Opinions
• Guardians ad Litem
• Court Reporters
• Court Interpreter Code of Ethics

Rules for Prosecutors

In the matter of amendment of Supreme Court Rules 20:3.8, 20:4.1, and 20:4.3

Order 01-01

On May 16, 2001, the Wisconsin District Attorneys Association filed a petition seeking to amend Supreme Court Rules 20:3.8, Special responsibilities of a prosecutor; 20:4.1, Truthfulness in statements to others; and 20:4.3, Dealing with unrepresented person.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Tuesday, March 12, 2002, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 27th day of November, 2001.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Petition

The Wisconsin District Attorneys Association, through its past president, E. Michael McCann, District Attorney of Milwaukee County, respectfully petitions this court to modify Rules 20:3.8, 20:4.1 and 20:4.3 of the Wisconsin Rules of Professional Conduct, as reflected in the attached draft, and in support of this petition states as follows:

1. Public prosecutors, like all attorneys licensed to practice law in Wisconsin, are subject to the Wisconsin Rules of Professional Conduct approved by this court on March 1, 1987;

2. However, as frequently recognized by this court,1 the role of the public prosecutor as a "minister of justice" is distinct from that of a lawyer representing an individual client, and his statutory and constitutional responsibilities to both investigate and advocate and to simultaneously protect the public and respect the procedural rights of the accused have no counterpart in the lawyer-client paradigm. As a consequence, much of the content of contemporary ethical codes - designed to guide lawyers who represent clients - are minimally helpful to those attorneys without actual clients such as public prosecutors. For example, in his role as investigator, the prosecutor is often called upon to advise law enforcement regarding investigative strategies, some of which may involve deceptive or surreptitious activities, responsibilities which require the careful balancing of individuals' rights and the community's interest in effective law enforcement;

3. The current Wisconsin rules, written primarily to address the private lawyer representing an individual client, do not acknowledge or contemplate the prosecutor's investigative responsibilities, creating the potential for ambiguity regarding the ethical propriety of investigative activities which have been approved in other contexts;

4. Petitioners submit that Wisconsin's ethical rules should explicitly acknowledge the legitimacy of the prosecutor's investigative role but allow other law to remain as the primary safeguard against investigative improprieties;2

5. Also, in the course of discharging his advocacy responsibility to prosecute violations of the law, Wisconsin prosecutors have frequent contact with defendants unrepresented by counsel, both in and out of court;

6. At present, the text of two rules address attorney contact with an unrepresented party - Rule 20:3.8 - applicable only to prosecutors - and Rule 20:4.3 - which applies to all attorneys;

7. Whether considered individually or together, petitioner submits that neither rule adequately reflects (a) the prosecutor's responsibility as a "minister of justice" (b) the substantial public interest in the efficient prosecution of criminal cases and (c) the importance of special safeguards to ensure fairness to the unrepresented defendant;

8. Rule 20:3.8 imposes both affirmative duties and prohibitions on prosecutors: subsec. (b) requires a prosecutor to inform the unrepresented defendant of the right to counsel and subsec. (c) prohibits "seeking" waivers of "important pretrial rights" from an unrepresented defendant;

9. Rule 20:4.3, applicable to all attorneys, provides minimal protection to the unrepresented - it contains no general duty to clarify the attorney's interest in the matter (unless confusion is apparent) and does not prohibit giving legal advice to an unrepresented person;3

10. Concern within the Wisconsin District Attorneys Association that current rules conflict with other law regarding proper investigative actions and appear to broadly prohibit pretrial negotiations with unrepresented defendants lead to creation of a WDAA Ad Hoc Committee which drafted several possible modifications of the rules, presented them to the membership of the organization for discussion and input at both the summer and winter conferences in 1998, the winter conference in 1999 and the 2000 summer conference;

11. In addition, in September of 1999, the WDAA circulated the proposed changes to many individual attorneys and lawyer organizations in this state to encourage input and suggestions from as many perspectives as possible. (Exhibits A and B, which are not included in this publication.);4

12. The attached draft reflects the final result of that process and would change current rules in the following ways:

(a) Scope of Rule 20:3.8 - At present, it is unclear whether the applicability of Rule 20:3.8 is controlled by the status of the lawyer (a public prosecutor) or the type of case involved (criminal rather than non-criminal). Petitioners believe the special duties of fairness in Rule 20:3.8 should be broadly applied to all government lawyers in the enforcement of both criminal and civil laws, a position reflected in the proposed Rule 20:3.8(1);

(b) Clarification of Interest - Neither Rule 20:3.8 nor Rule 20:4.3 require, as a matter of regular practice, that a prosecutor explain his interest to an unrepresented defendant. Petitioners believe this is a fundamental component of fairness in dealing with the unrepresented which should be embodied in the rules, at least when one party is the government;

(c) Validity of Plea Negotiations and Giving Advice to An Adverse Party - No current ethical rule explicitly prohibits a prosecutor or any other attorney from giving legal advice to an unrepresented adverse party.5 On the other hand, Rule 20:3.8(c) imposes a blanket prohibition against "seek[ing] [a] waiver of important pretrial rights." All settlement discussions consummated by entry of a plea of guilty involve the waiver of important pretrial and trial rights. How this language should be applied to the daily prosecutor-unrepresented defendant contact that defines the system today is unclear, particularly in busy misdemeanor courts wherein is so often found the unrepresented defendant.6 Petitioner believes that the prosecutor should be able to inform the defendant of a settlement offer and negotiate a resolution which may include a waiver of constitutional and statutory rights but should not be permitted to advise the unrepresented party whether counsel is necessary, whether a particular course of action should be taken or the likely consequence of a particular course of action. As a corollary, prosecutors should neither be required nor permitted to assist unrepresented defendants in the completion of written forms to demonstrate their desire to waive important pretrial or trial rights, an exercise which can easily become a request for advice rather than information;

(d) Duty to Inform of Right to Counsel - The issue of whether a person should be represented by an attorney and the process of selection of counsel can involve consideration of a complex range of personal considerations and information. Prosecutors should have a duty to tell the unrepresented of their right to counsel but should not be expected or allowed to counsel them about their options;

(e) Distinguishing Prosecution Roles - A primary focus of this petition is prosecutor contact with unrepresented defendants after litigation has been commenced.7 The changes proposed would not apply to the investigative activities of the prosecutor. A broad application of these amendments - or certain existing rules - to the prosecutor's investigative function would prohibit investigative techniques which have traditionally been measured and permitted by other bodies of law.8 For this reason, modifications to Rules 20:3.8, 20:4.1 and 20:4.3 would explicitly exclude the investigation function of the prosecution in deference to other substantive law as a control mechanism;

WHEREFORE based upon the above and the attached draft and commentary petitioner respectfully requests that this court schedule this matter for a hearing and that following consideration of the petition that the changes proposed be adopted and incorporated into the Wisconsin Rules of Professional Conduct.

Dated this 10th day of May, 2001.

E. Michael McCann, District Attorney, Milwaukee County, Past President, Wisconsin District Attorneys Association

1 This court has long recognized the unique role of prosecutors as quasi-judicial officers whose duty is to seek justice rather than merely convictions. State v. Karpinski, 92 Wis. 2d 599, 285 N.W. 2d 729 (1979); Thompson v. State, 61 Wis. 2d 325, 212 N.W. 2d 109 (1973); State v. Peterson, 195 Wis. 351, 218 N.W. 367 (1928); O'Neil v. State, 189 Wis. 259, 207 N.W. 280 (1926).

2 Persons claiming harm from the investigative actions of a state prosecutor may commence a civil rights action under 42 U.S.C. § 1983. Burns v. Reed, 500 U.S. 478 (1991). A parallel cause of action exists against federal prosecutors. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Prosecutors acting in an investigative capacity have only qualified immunity. In addition, due process may require the dismissal of charges if government conduct is "shocking to the universal sense of justice," United States v. Russell, 411 U.S. 423, 432 (1973); Jacobson v. United States, 503 U.S. 540 (1992); Rochin v. California, 342 U.S. 165 (1952). Judicial remedies have been fashioned for investigative violations of the Fourth and Fifth Amendments to the United States Constitution. See Mapp v. Ohio, 367 U.S. 643 (1961); Gerstein v. Pugh, 420 U.S. 103 (1975); Miranda v. Arizona, 384 U.S. 436 (1966). Thus, petitioner's request to exempt prosecutorial investigative actions from the reach of the ethical rules is not meant to suggest such actions be beyond control. Rather, pre-existing bodies of law provide adequate controls over claimed prosecutorial excesses in an investigative context.

3 The prohibition against advice to the unrepresented in the earlier Code of Professional Responsibility was transferred from text to comment in the Model Rules adopted by this court. Given that the commentary was not adopted in this court's order of March 1, 1987, the significance of the commentary's prohibition is unclear.

4 Although feedback from the circulation process was modest, all suggestions received were discussed by the WDAA with several ideas incorporated into the final proposal.

5 The current A.B.A. ethical rules impose fewer limitations on lawyer contact with the unrepresented person than the organization's two prior formulations. Canon 9 of the American Bar Association Canons of Professional Ethics provided, "[i]t is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law." Similarly, Disciplinary Rule 7-104(A)(2) of the Code of Professional Responsibility provided that "a lawyer shall not ... [g]ive advice to a person who is not represented by a lawyer, other than the advice to secure counsel if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client."[emphasis supplied]

6 The breadth of current Rule 20:3.8(c)'s text would seem to prevent self-representation in negotiations even if the defendant has waived counsel. Faretta v. California, 422 U.S. 806 (1975).

7 Petitioners believe the point of commencement of litigation provides a clear and appropriate dividing line between the prosecutor's investigative and advocacy roles.

8 See United States v. Powe, 9 F.3d 68 (9th Cir. 1993); United States v. Heinz, 983 F.2d 609, 613-14 (5th Cir. 1993); United States v. Ryans, 903 F.2d 731 (10th Cir. 1990); United States v. Sutton, 801 F.2d 1346, 1365-66 (D.C. Cir. 1986); United States v. Dobbs, 711 F.2d 84, 86 (8th Cir. 1983); United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir.), cert. denied, 464 U.S. 852 (1983); United States v. Vasquez, 675 F.2d 16, 17 (2d Cir. 1982); United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir.), cert. denied, 452 U.S. 918 (1981); United States v. Weiss, 599 F.2d 730, 739-40 (5th Cir. 1979); United States v. Lemonakis, 485 F.2d 941, 953-56 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974); United States v. Marcus, 849 F. Supp. 417 (D. Md. 1994); In Re Disciplinary Proceedings Doe, 876 F. Supp. 265 (M.D. Fla. 1993); State v. Smart, 622 A.2d 1197 (N.H. 1993); United States v. Ryans; In Re Criminal Investigation No. 13, 573 A.2d 51 (Md. App. 1990); Triple A Machine Shop, Inc. v. State, 213 Cal. App.3d, 261 Cal. Rptr. 493 (1989); and State v. Irving, 644 P.2d 389 (Ks. 1982). But see United States v. Hammad, 858 F.2d 834, 839 (2d Cir. 1988), cert. denied, 498 U.S. 871 (1990); United States v. Pinto, 850 F.2d 927, 934 (2d Cir.), cert. denied, 488 U.S. 932 (1988); and also, contra, United States v. Jamil, 707 F.2d 638 (2d Cir. 1983). But see also Kochutin v. State, 813 P.2d 298 (Alaska App. 1991).

Draft and Commentary

SCR 20:3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:

(a) A prosecutor includes a district attorney, special prosecutor, municipal prosecutor, attorney general or any other government attorney involved in the enforcement of a law, the rules of a regulatory agency, or the protection of a child;

NOTE: This section is new. The current rule appears to only apply to prosecutors in criminal cases. The proposed definition expands application of Rule 20:3.8 to all government lawyers in both criminal and civil actions.

(a) (b) A prosecutor shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

NOTE: This is a restatement of the current Rule 20:3.8(a).

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(c) When communicating with an unrepresented person in other than an investigative capacity a prosecutor shall inform the person of his role and interest in the matter;

NOTE: This provision is new. It would require, in all cases, that a prosecutor, as defined by subsection (a), explain his role and interest to an unrepresented person with potentially adverse interests. Neither Rule 20:3.8 nor Rule 20:4.3 presently require such clarification in all cases. The verb "inform" is used here and throughout the proposed rule changes instead of "advise" to make clear that prosecutors may provide information but should not advise the unrepresented party as to a course of action. The language "in other than an investigative capacity" in the proposal reflects another important change from the current rules - explicit recognition of the prosecutor's investigative role and excluding application of the proposed changes to Rules 3.8, 4.1 and 4.3 to pre-charging prosecution investigative actions. The reasons underlying this aspect of the proposal are discussed in greater detail in the comment following the proposed changes.

(d) When communicating with an unrepresented person after the commencement of litigation the prosecutor shall:

(1) in a criminal case inform the person of the right to counsel and the procedures to obtain counsel;

(2) in a non-criminal case inform the person of a statutory right to counsel should one exist and the procedures to obtain counsel;

NOTE: Under this subsection the duty to inform unrepresented persons of the opportunity for representation and the procedures to obtain counsel is triggered by the existence of a constitutional or statutory right to counsel. The requirement to make "reasonable efforts to ensure the person has the opportunity to obtain counsel" in the current Rule 20:3.8(b) is removed. Past experience suggests confusion about what this language required in addition to providing information about the right to counsel and procedures to obtain representation. Deleting the final sentence of the current Rule 20:3.8(b) does not substantially diminish a prosecutor's responsibility and avoids confusion about what more should be done.

(e) When communicating with an unrepresented person after the commencement of litigation a prosecutor may discuss the matter, provide information regarding settlement and negotiate a resolution which may include a waiver of constitutional and statutory rights but a prosecutor shall not:

(1) otherwise provide legal advice to the person, including, but not limited to whether to obtain counsel, whether to accept or reject a settlement offer, whether to waive important procedural rights or what the tribunal is likely to do in the case, or;

(2) assist the person in the preparation of legal documents relevant to the waiver of important procedural rights in connection with the matter;

NOTE: Subsection (e) is perhaps the most important subsection of the proposed draft. It is intended to explicitly permit prosecutor contact with an unrepresented defendant while structuring the contact to prevent unfair advantage. The current Rule 20:3.8(c) suggests any settlement discussions that involve waiver of "important pretrial rights" are improper. This appears to prohibit all plea negotiations, however fairly conducted, in which an unrepresented defendant is offered a benefit to waive trial-related rights even in those cases in which counsel may have been waived before a court. In contrast, under the proposed draft a prosecutor is permitted to discuss the case, provide information and negotiate with the unrepresented defendant but may not seek to advise the person as to a preferred course of action. It is assumed that in concert with subsec. (c), all prosecutor contact with an unrepresented person would involve:

• clarification of the prosecutor's role in the matter
• information regarding the right to counsel if such a right exists and
• discussion about the case
• providing information regarding settlement and
• an attempt to negotiate a settlement which may involve the waiver of constitutional and statutory rights

but should not include:

• advice as to a particular course of action or
• assistance in completing forms to reflect the waiver of important procedural rights

(f) A prosecutor in a criminal case shall:

(d) (1) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e)(2) exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6.

NOTE: Subsection (f) simply renumbers existing Rule 20:3.8(d), (e).

SCR 20:4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6;

(c) nothing in this rule is intended to render unlawful actions by a prosecutor as defined in Rule 20:3.8(a) acting in an investigative capacity if such conduct is otherwise authorized by law.

NOTE: The change in Rule 20:4.1 is substantive. It would not apply to the prosecutor acting in an investigative role and conforms the description of the prosecutor's investigative role to that used in Rules 20:3.8 and 20:4.3.

SCR 20:4.3 DEALING WITH UNREPRESENTED PERSONS

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. This rule does not apply to a prosecutor acting in an investigative capacity.

NOTE: As with the change in Rule 20:4.1, Rule 20:4.3 would not apply to a prosecutor acting in an investigative capacity.

COMMENT: The changes proposed have two basic purposes: recognition of the unique investigative function of the prosecutor and creation of a sensible approach to the increasing issue of prosecutor contact with the unrepresented defendant. Petitioners respectfully believe the current rules' treatment of these important issues is inadequate.

First, the proposal explicitly recognizes the dual roles of the prosecutor - as investigator and as advocate - and would limit application of the ethical rules to the advocacy role. Ethical codes' primary focus has always been the lawyer with a client. This being so, they have rarely provided helpful guidance for issues unique to the lawyer without a client - for example, the public prosecutor or other government lawyers. Nowhere is this more apparent than the investigative role of the prosecutor.

A number of responses are possible. One is to create a specific set of ethical rules unique to this function. See Flowers, A Code of Their Own: Updating the Ethics Codes to Include the Nonadversarial Roles of Federal Prosecutors, 37 Boston College Law Review 923 (1996). Another is to simply ignore the issue in the ethical rules, creating ambiguity and potential conflict between ethical rules and other bodies of substantive law. This appears to be the approach of the current Model Rules as well as the version adopted in Wisconsin. A third approach is to explicitly defer to other, pre-existing bodies of law as the primary control over investigative activities.

Petitioners suggest the latter approach. This does not mean investigative actions are beyond controls; instead it suggests that pre-existing authority is better suited to serve as a control over government lawyer investigative activities. For example, persons claiming harm from the investigative actions of a state prosecutor may commence a civil rights action under 42 U.S.C. § 1983. Burns v. Reed, 500 U.S. 478 (1991). A similar cause of action exists against federal prosecutors. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Prosecutors have only qualified immunity when acting in an investigative capacity. In addition, due process may require the dismissal of charges if government conduct is "shocking to the universal sense of justice,"United States v. Russell, 411 U.S. 423, 432 (1973), while Fourth and Fifth Amendment jurisprudence provides remedies for investigative actions which violate an individual's rights guaranteed by these amendments to the Constitution. There is precedent for this deferential approach in several of the current ethical rules. For example, Rules 20:3.3, 20:3.4(b) and 20:4.2 in text or comment incorporate other law into the analysis of ethical requirements.

Second, and the primary motivation for this petition, the proposed changes directly confront the reality of prosecutor contact with the unrepresented defendant after the commencement of charges. In nearly every county prosecutors have contact with unrepresented defendants, either prior or subsequent to any court appearances or waivers of counsel. Many of these defendants do not qualify for a public defender, cannot reasonably afford a private attorney or are not interested in representation. And, there is reason to believe this problem is and will continue to grow. In the view of the WDAA, the current rules cannot be reasonably interpreted to accommodate fair and efficient practice nor do they provide adequate protections to the pro se defendant. Consequently, a petition for a rule change is necessary.

The proposed draft affects three rules: 20:3.8; 20:4.1 and 20:4.3. There are several substantive changes from the existing rules:

• Scope of Rule Change. The current Rule 20:3.8 appears to apply only to a prosecutor in a criminal case. The proposed draft expands the rule in two ways - it applies to all government lawyers and to criminal and civil enforcement actions alike. [20:3.8(a)]
  
  
• Clarification of Interest. Except when the prosecutor is acting in an "investigative capacity" the proposed draft would impose an affirmative duty in all cases to explain to the unrepresented person the prosecutor's role and interest in the case. Current Rule 20:4.3 imposes such a duty only when it appears there is a risk of confusion and does not explicitly prohibit giving unrepresented adverse parties advice. Thus, an attorney confronting an unrepresented party may provide advice to that party and need not clarify his true interest in the matter. The risk of exploitation of the unrepresented under Rule 20:4.3 is manifest. While perhaps defensible in client representation, petitioners believe this is unacceptable for the government lawyers representing the public interest. The specific requirements for prosecutors in proposed Rule 20:3.8(c) are intended to control over the more general requirements of Rule 20:4.3 when the prosecutor is acting in a non-investigative role. [20:3.8(c)]
  
  
• Validity of Plea Negotiations and Giving Advice to an Adverse Party. The draft explicitly permits a prosecutor to discuss with an unrepresented person the facts underlying a charge, provide information about settlement and attempt to negotiate a resolution of the case which may involve the waiver of constitutional and statutory rights. This would apply whether or not the person expressed an interest in representation and whether or not the person has waived counsel before a court. The idea is that the prosecutor would only be giving information; no waivers would or could occur unless and until the person appears before a court. To prohibit discussion or settlement information when a desire for counsel is expressed would add another step to the process without necessarily ensuring greater fairness. To emphasize the distinction drawn between providing "information" (which would be permitted) and giving "advice" (which would be prohibited at least with 'prosecutors') several examples are included in the text of the rule and the verb "advise" is replaced by the term "inform."[20:3.8(e)]

With respect to giving "advice," the intent is to distinguish providing information from advising. Prohibited "advice" would include recommending a particular course of action or assisting with explaining and completing written waiver of rights forms. A nonexhaustive listing of examples of prohibited advice is included. In addition, the rule would prohibit the current practice in many counties in which trial judges ask prosecutors to help unrepresented defendants complete written waiver of rights forms. Indeed, there is reason to believe that written waivers are a poor substitute for a judge-defendant colloquy when the defendant has no lawyer or access to legal advice. However, should trial judges wish to rely on form-waivers with unrepresented defendants, petitioners believe prosecutors should not be required to complete or explain the forms. [20:3.8(e)(2)]

• Duty to Inform of Right to Counsel. In response to prosecutor feedback to prior drafts the proposed rule would limit the duty to inform a person of the right to counsel to the situation when contact follows commencement of a matter for which there is a statutory or constitutional right to counsel. Intentionally left vague is exactly what information must be provided. General guidance in the rule should provide sufficient flexibility for variations in local practice. Also intentionally avoided is the custodial interrogation situation, which is best left to existing guidelines in the constitutional arena. [20:3.8(d)(1), (2)]
  
  
• Distinguishing the prosecutor's "investigative" and "advocate" roles. The WDAA's view is that application of these rules to the prosecutor acting in an investigative role would unduly hamper fact-gathering. A substantial body of other law recognizes the legitimacy of prosecutor investigative actions which may conflict with current provisions of the ethical rules. If the prosecutor's roles are bifurcated as "investigatory" and "advocacy," there must be a means of determining in what capacity a prosecutor is acting at a particular time. Petitioners believe the formal commencement of an action provides a clear dividing line. It is defined by statute - e.g., filing a criminal complaint commences a criminal action (s. 968.01); filing a properly served summons and complaint commences a civil action (s. 801.02(1)) and filing a citation commences an ordinance case. (s. 800.01(1)). This distinction is clear and consistent with practice. Cases are investigated before filing, and the act of commencement of litigation generally means the investigation has been successfully completed. Thus, the prosecutor's pre-filing activities would be excluded from the reach of the proposed Rules 3.8, 4.1 and 4.3 while all subsequent actions would be subject to the new rules.

Court of Appeals Opinions

In the matter of the amendment of Wis. Stat. § 809.23 regarding publication of court of appeals opinions.

Order 01-04

On Nov. 28, 2001, the court held a public hearing on the petition filed on March 12, 2001, by the Judicial Council seeking to amend Wis. Stat. § 809.23 to allow for the partial publication of a court of appeals opinion.

The court has considered the petition and the matters presented at the public hearing. The court agrees with the proposal to amend the references to be res judicata and collateral estoppel under Wis. Stat. § 809.23 (3). The court is not convinced of the need for the creation of a seemingly cumbersome partial publication procedure. The court is concerned that extracting a legal issue from its context and issuing two opinions may raise rather than resolve problems without reducing the court of appeals' workload.

IT IS ORDERED that, effective July 1, 2002, § 809.23 (3) of the statutes is amended to read:

809.23 (3) Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata claim preclusion, collateral estoppel issue preclusion, or the law of the case.

IT IS FURTHER ORDERED that insofar as the petition seeks to create a section under Wis. Stat. § 809.23 to provide for partial publication of court of appeals opinions, the petition is denied.

IT IS FURTHER ORDERED the notice of this amendment to Wis. Stat. § 809.23 (3) shall be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.

Dated at Madison, Wis., this 20th day of December, 2001.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

  Guardians Ad Litem

In the matter of amendment of Supreme Court Rules Chapter 35 - Eligibility for Appointment as Guardian Ad Litem

Order 01-07

On Nov. 13, 2001, the court held a public hearing on the petition filed on April 5, 2001, by the Joint Legislative Council seeking to amend Supreme Court Rules chapter 35 relating to the eligibility for appointment as a guardian ad litem for a minor under Wis. Stat. chapter 767.

IT IS ORDERED that, effective July 1, 2003, Supreme Court Rules chapter 35 is amended as follows:

Section 1. 35.01 (intro.) of the Supreme Court Rules is amended to read:

35.01 Eligibility to accept an appointment. (intro.) Commencing on July 1, 1999, a lawyer may not accept an appointment by a court as a guardian ad litem for a minor in an action or proceeding under chapter 48, 767 or 938 of the statutes unless one of the following conditions has been met:

Section 2. 35.015 of the Supreme Court Rules is created to read:

35.015 Eligibility to accept an appointment. Commencing on July 1, 2003, a lawyer may not accept an appointment by a court as a guardian ad litem for a minor in an action or proceeding under chapter 767 of the statutes unless one of the following conditions has been met:

(1) The lawyer has attended 6 hours of guardian ad litem education approved under SCR 35.03 during the combined current reporting period specified in SCR 31.01 (7) at the time he or she accepts an appointment and the immediately preceding reporting period. At least 3 of the 6 hours shall be family court guardian ad litem education approved under SCR 35.03 (1m).

(2) The appointing court has made a finding in writing or on the record that the action or proceeding presents exceptional or unusual circumstances for which the lawyer is otherwise qualified by experience or expertise to represent the best interests of the minor.

Section 3. 35.02 of the Supreme Court Rules is amended to read:

35.02 Effect of acceptance. A lawyer's acceptance of appointment as a guardian ad litem for a minor in an action or proceeding under chapter 48, 767, or 938 of the statutes constitutes the lawyer's representation to the appointing court that the lawyer is eligible to accept the appointment under SCR 35.01 or 35.015, whichever is applicable, and is governed by SCR 20:3.3.

Section 4. 35.03 (1) of the Supreme Court Rules is amended to read:

35.03 (1) The board of bar examiners shall approve courses of instruction at a law school in this state and continuing legal education activities that the board determines to be on the subject of the role and responsibilities of a guardian ad litem for a minor or on the subject matter of proceedings under chapter 48, 767, or 938 of the statutes and that are designed to increase the attendee's professional competence to act as guardian ad litem for a minor in those proceedings. The board of bar examiners may only approve courses of instruction or continuing legal education activities that are conducted after January 1, 1995.

Section 5. 35.03 (1m) of the Supreme Court Rules is created to read:

35.03 (lm) (a) The board of bar examiners shall approve, as family court guardian ad litem education, courses of instruction at a law school in this state and continuing legal education activities that the board determines to be on any of the following subject matters:

1. Proceedings under chapter 767 of the statutes.

2. Child development and the effects of conflict and divorce on children.

3. Mental health issues in divorcing families.

4. The dynamics and impact of family violence.

5. Sensitivity to various religious backgrounds, racial and ethnic heritages, and issues of cultural and socioeconomic diversity.

(b) The board of bar examiners may only approve courses of instruction or continuing legal education activities that are conducted after June 1, 2002.

Section 6. 35.03 (2) of the Supreme Court Rules is amended to read:

35.03 (2) The board of bar examiners shall designate, under SCR 31.05 (3) and 31.07, the number of hours applicable to SCR 35.01 (1) and (2) and 35.015 (1) for each approved course of instruction and continuing legal education activity.

Section 7. 35.03(3) of the Supreme Court Rules is amended to read:

35.03 (3) Approval of a course of instruction or continuing legal education activity under sub. subs. (1) and (1m) constitutes approval of that course or activity for purposes of continuing legal education under SCR chapter 31.

IT IS ORDERED that notice of this amendment of Supreme Court Rules chapter 35 be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.

Dated at Madison, Wis., this 14th day of December, 2001.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Court Reporters

In the matter of amendment of Supreme Court Rules Chapter 70, 71.01, 71.04 regarding court reporters.

Order 01-14

On Sept. 21, 2001, the Director of State Courts, on the recommendation of the Committee of Chief Judges and District Court Administrators, filed a petition seeking to amend Supreme Court Rules under chapters 70 and 71 governing court reporters. The petitioner proposes amendments that would allow a chief judge to assign court reporters as needed within the district and in adjoining districts, provide confidential proceedings be transcribed only upon court order, require reporters to create an index page for transcripts, allow parties to stipulate to the use of an independent freelance reporter's transcript, establish payment for an electronic copy of the transcript, and eliminate duplicate transcript of videotape depositions.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Wednesday, April 17, 2002, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 27th day of November, 2001.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Amended Petition 01-14

The Director of State Courts, on the recommendation of the Committee of Chief Judges and District Court Administrators, hereby submits this amendment to Petition 01-14, requesting the court to amend the Supreme Court Rules governing court reporters. This petition is made pursuant to the court's rulemaking authority under § 751.12 and its administrative authority over all courts conferred by Article VII, § 3 of the Wisconsin Constitution.

These amendments would allow the chief judge of each judicial district to assign court reporters as needed within the district and in adjoining districts, eliminate duplicate transcription of videotape depositions, provide that confidential proceedings be transcribed only upon court order, require reporters to create an index page for transcripts, allow reporters to provide draft transcripts, allow parties to stipulate to the use of an independent freelance reporter's transcript, and establish payment for an electronic copy of the transcript.

(1) The chief judge of each district should be authorized to assign court reporters to other courts in the district and outside the district, as needed to effectively manage court reporting resources. SCR 70.25 should be created to read as follows:

SCR 70.25. Assignment of Court Reporters.

(1)(a) While the official court reporter serves by appointment and at the pleasure of the circuit judge, in order to effectively manage court reporting resources within each judicial administrative district, the chief judge is authorized to assign official court reporters as needed to other courts within the district.

(b) Official court reporters may also be assigned to courts in adjoining districts.

(c) Real-time certified official court reporters may be reassigned as needed to provide reasonable accommodations under the Americans with Disabilities Act.

COMMENT: The Wisconsin Court System recognizes the achievement and level of service provided by real-time certified official court reporters through a higher salary level than reporters who are not real-time certified. This recognition is due, in part, to the expectation that real-time certified official court reporters may be reassigned as needed for ADA purposes.

(2) Videotape depositions accompanied by transcripts should be added to the list of proceedings that need not be transcribed. SCR 71.01(2)(d) should be created to read as follows:

71.01. Reporting. (1) "Reporting" means making a verbatim record.

(2) All proceedings in the circuit court shall be reported, except for the following: ...

(d) If accompanied with a transcript, videotape depositions offered as evidence during any type of hearing or court proceeding.

COMMENT: It is customary that a transcript accompanies a video deposition when it is presented to the trial court. Therefore, a court reporter should not be required to again record the video when it is presented to the fact finder - provided a record is made of any editing of the video and the court reporter remains available while the video is presented to the fact finder in order to record any motions, objections, and rulings.

(3) Transcripts of confidential or sealed proceedings should be produced only upon order of the court. SCR 71.04(4) should be amended as follows:

SCR 71.04. Transcripts. ... (4) Reporter's notes or other verbatim record of proceedings under chs. 48, 767 and 938 of the statutes in cases made confidential by statute or rule, or sealed by the court, shall be transcribed only upon order of the court.

(4) Transcripts should include an index page to help guide the reader. SCR 71.04(8) should be amended as follows:

SCR 71.04. Transcripts. ... (8)(a): For purposes of this rule a page other than the final page of a transcript shall consist of any 25 or more consecutive typewritten lines, ...

(b) Each transcript shall include an index page immediately following the title and appearance page(s). The index shall list page numbers for the following when applicable:

1. Opening statements

2. Jury voir dire

3. Witness names in chronological order, including direct, cross, redirect, recross, rebuttal, surrebuttal examinations, witness voir dire, and examination by the court

4. Exhibit numbers (include a description) offered and received

5. Closing arguments

6. Instructions and verdict given to jury

7. Receipt of verdict or rendering of the court's decision

8. Polling of the jury

9. Sentencing

(5) Court reporters should be able to provide an unedited rough draft transcript upon request. SCR 71.04(9) should be amended to read:

SCR 71.04. Transcripts. ... (9) A reporter may make special charge, pursuant to arrangement with the party requesting same, for:

(a) furnishing typewritten transcripts of testimony and proceedings from day to day during the progress of any trial or proceedings, or:

(b) furnishing an unedited, typewritten or electronic, draft version of testimony or proceedings except where a certified transcript has been filed under sub. (6). An unedited, uncertified transcript is not the official record.

(6) With trial court approval, the parties should be able to stipulate that an independent freelance reporter may take the official record or provide the official record. SCR 71.04(11) should be renumbered as (12), and a new (11) should be created to read:

SCR 71.04. Transcripts. ... (11)(a) If, before trial, a stipulation by all parties is approved by the court, an independent freelance reporter may take the official record, or a portion of it, upon taking the official oath of office.

(b) If, after trial, a stipulation by all parties is approved by the court, an independent freelance reporter's record may be the official record or a portion of it.

(c) Before approving a stipulation under (a) or (b), the court shall consider the availability of an official reporter, including the ability to meet requests for providing daily transcripts.

(d) An independent freelance reporter authorized under (a) or (b) shall comply with all other requirements of SCR 71 relating to the production of the official record and transcripts and charges for transcripts.

(7) Court reporters should be compensated a reasonable amount for providing an electronic copy of a transcript in addition to a typed copy. SCR 71.04(13) should be created to read:

SCR 71.04. Transcripts. ... (13) Upon request and payment for a certified paper copy of a transcript, court reporters may provide an electronic copy of the transcript upon payment of an additional $10.00.

Respectfully submitted this 28th day of December, 2001.

J. Denis Moran, Director of State Courts

Court Interpreter Code of Ethics

In the matter of adoption of a code of ethics for court interpreters.

Order 01-17

On Dec. 20, 2001, the Director of State Courts filed an amended petition requesting this court to adopt a code of ethics for interpreters working in Wisconsin courts.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Wednesday, April 17, 2002, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing on this matter and on rule petition 01-14 regarding court reporters.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the amended petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 20th day of December, 2001.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Amended Petition 01-17

The Director of State Courts submits this amended petition to adopt a code of ethics for interpreters working in the Wisconsin courts, replacing the petition filed Dec. 11, 2001. This request is made pursuant to the court's superintending and administrative authority conferred by Article VII, § 3 of the Wisconsin Constitution and the specific authority recently conferred by Wis. Stats. § 885.38(2):

"The Supreme Court shall establish the procedures and policies for the recruitment, training, and certification of persons to act as qualified interpreters in a court proceeding and for the coordination, discipline, retention, and training of those interpreters."

This language was introduced at the court's request as part of 2001 Act 16, effective July 1, 2002. The new statute is part of the court's effort to improve the qualifications of court interpreters and funding for court interpreting services.

The proposed code of ethics was written by the Committee to Improve Interpreting and Translation in the Wisconsin Courts, as discussed in its report, "Improving Interpretation in Wisconsin's Courts," at pages 19-22 and appendix 4 (October 2000). It is based on a model code developed by the National Center for State Courts, similar codes from other state courts, and the code of ethics for the National Registry of Interpreters for the Deaf.

The committee found that court interpreters, judges, and attorneys are often unaware of the proper role of the court interpreter and the professional responsibilities it demands. The purpose of the code of ethics is to articulate a core set of principles to guide the conduct of a court interpreter and to educate judges in the conduct expected. It will serve as the basis for interpreter and judicial training, and may eventually serve as the basis for disciplinary actions.

The proposed code of ethics is a key component of the interpreter training effort. During 2002, the director's office plans to offer interpreter training statewide and to develop a roster of trained interpreters available to work in the courts. When funding becomes available, the director's office anticipates that the court will offer certification tests to make a meaningful assessment of interpreter qualifications, as provided by § 758.19(8) and § 885.38(2). Other rules and policies governing interpreter use will be brought to the court as they are developed, in support of the overall effort to improve court interpreter services.

The court is therefore requested to create chapter 63 of the Supreme Court Rules, entitled "Court Interpreters," and to adopt the Code of Ethics for Court Interpreters as Rules 63.001- 63.10.

Respectfully submitted:

J. Denis Moran, Director of State Courts

Chapter 63 of the Supreme Court Rules, Court Interpreters, is created to read:

COURT INTERPRETERS

SCR 63.001. SCR 63.001 - 63.10 shall be known as the "Code of Ethics for Court Interpreters."

SCR 63.002. PREAMBLE. Many persons are partially or completely excluded from participation in court proceedings due to limited proficiency in the English language, as described in Wis. Stats. 885.37(1)(b) and 885.38(1)(b). These communication barriers must be removed as much as is reasonably possible so that all persons may enjoy equal access to justice. Qualified interpreters are highly skilled professionals who help judges conduct hearings justly and efficiently when communication barriers exist.

SCR 63.003. APPLICABILITY. The Code of Ethics for Court Interpreters (hereafter the "Code") governs the delivery of services by foreign language and sign language interpreters working in the courts of the State of Wisconsin. Its purpose is to define the duties of interpreters and thereby enhance the administration of justice and promote public confidence in the courts. This Code also applies to real time reporters when functioning in the capacity of providing access to court users.

SCR 63.004. COMMENTARY. The word "shall" is used to define principles to which adherence is required. The comments expand and describe basic principles of the Code. If a court policy or routine practice appears to conflict with any provision of the Code, including the comments, the policy or practice should be reviewed for modification.

SCR 63.01: ACCURACY AND COMPLETENESS. Interpreters shall render a complete and accurate interpretation or sight translation, by reproducing in the target language the closest natural equivalent of the source language message, without altering, omitting, or adding anything to the meaning of what is stated or written, and without explanation.

Comment: Interpreters have a twofold role:

1) to ensure that court proceedings reflect, in English, precisely what was said by persons of limited English proficiency.

2) to place persons of limited English proficiency on an equal footing with persons who understand English.

This creates an obligation to conserve every element of information contained in a source language communication when it is rendered in the target language.

Therefore, interpreters are required to apply their best skills and judgment to preserve, as faithfully as is reasonably possible and without editing, the meaning of what is said, including the style or register of speech, the ambiguities and nuances of the speaker, and the level of language that best conveys the original meaning of the source language. Verbatim, "word for word," or literal oral interpretations are inappropriate when they distort the meaning of what was said in the source language. However, every spoken statement, even if it appears nonresponsive, obscene, rambling, or incoherent should be interpreted. This includes apparent misstatements.

Interpreters should not interject any statement or elaboration of their own. If the need arises to explain an interpreting problem (e.g. a term or phrase with no direct equivalent in the target language or a misunderstanding that only the interpreter can clarify), the interpreter should ask the court's permission to provide an explanation.

Spoken language interpreters should convey the emotional emphasis of the speaker without reenacting or mimicking the speaker's emotions, or dramatic gestures. Sign language interpreters, however, must employ all of the visual cues that the language they are interpreting for requires - including facial expressions, body language, and hand gestures. Judges should ensure that court participants do not confuse these essential elements of the interpreted language with inappropriate interpreter conduct. Any challenge to the interpreter's conduct should be directed to the judge.

The obligation to preserve accuracy includes the interpreter's duty to correct any errors of interpretation discovered during the proceeding. Interpreters should demonstrate their professionalism by objectively analyzing any challenge to their performance.

The ethical responsibility to interpret accurately and completely includes the responsibility of being properly prepared for interpreting assignments. Interpreters are encouraged to obtain documents and other information necessary to familiarize themselves with the nature and purpose of a proceeding. Prior preparation is generally described below, and is especially important when testimony or documents include highly specialized terminology and subject matter.

In order to avoid any impropriety or appearance of impropriety, interpreters should seek leave of the court before conducting any preparation other than the review of public documents in the court file. Courts should freely grant such leave in order to assist interpreters to discharge their professional responsibilities.

Preparation might include but is not limited to:

1) review of public documents in the court file, such as motions and supporting affidavits, witness lists and jury instructions, the criminal complaint, information, and preliminary hearing transcript in a criminal case; and the summons, complaint and answer in a civil case.

2) review of documents in the possession of counsel, such as police reports, witness summaries, deposition transcripts and pre-sentence investigation reports, obtaining a written copy of witness lists from the court;

3) contacting previous interpreters involved in the case for information on language use/style;

4) contacting attorneys involved in the case for additional information on anticipated testimony or exhibits;

5) anticipating and discussing interpreting issues related to the case with the judge, but only in the presence of counsel unless the court directs otherwise.

SCR 63.02: REPRESENTATION OF QUALIFICATIONS. Interpreters shall accurately and completely represent their certifications, training, and experience.

Comment: Acceptance of a case by an interpreter conveys linguistic competency in legal settings. Withdrawing, or being asked to withdraw, after a court proceeding has begun is disruptive and wasteful of scarce public resources. It is therefore essential that interpreters present a complete and truthful account of their training, certification and experience prior to appointment so the court can fairly evaluate their qualifications for delivering interpreting services.

SCR 63.03: IMPARTIALITY AND AVOIDANCE OF CONFLICT OF INTEREST. Interpreters shall be impartial and unbiased, and shall refrain from conduct that may give an appearance of bias. Interpreters shall disclose any real or perceived conflict of interest.

Comment: Interpreters serve as officers of the court. Their duties in a court proceeding are to serve the court and the public regardless of whether publicly or privately retained.

Interpreters should avoid any conduct or behavior that presents the appearance of favoritism toward anyone. Interpreters should maintain professional relationships with persons using their services, discourage personal dependence on the interpreter, and avoid participation in the proceedings other than as an interpreter.

During the course of the proceedings, interpreters of record should not converse with parties, witnesses, jurors, attorneys, or with friends or relatives of any party, except in the discharge of their official functions. Official functions may include an informal pre-appearance assessment to include the following:

1) culturally appropriate introductions;

2) a determination of variety, mode, or level of communication

3) a determination of potential conflicts of interest; and

4) a description of the interpreter's role and function.

Interpreters should strive for professional detachment. Verbal and non-verbal displays of personal attitudes, prejudices, emotions, or opinions must be avoided at all times.

Interpreters shall not solicit or accept any payment, gift or gratuities in addition to compensation from the court.

Any condition that interferes with the objectivity of an interpreter constitutes a conflict of interest and must be disclosed to the judge. Interpreters should only divulge necessary information when disclosing the conflict of interest. The disclosure shall not include privileged or confidential information. The following circumstances create potential conflicts of interest that must be disclosed:

1) the interpreter is a friend, associate, or relative of a party, counsel for a party, a witness, or a victim (in a criminal case) involved in the proceedings;

2) the interpreter or the interpreter's friend, associate, or relative has a financial interest in the subject matter in controversy, a shared financial interest with a party to the proceeding, or any other interest that might be affected by the outcome of the case;

3) the interpreter has served in an investigative capacity for any party involved in the case;

4) the interpreter has previously been retained by a law enforcement agency to assist in the preparation of the criminal case at issue;

5) the interpreter is an attorney in the case at issue;

6) the interpreter has previously been retained for employment by one of the parties; or

7) for any other reason, the interpreter's independence of judgment would be compromised in the course of providing services.

The existence of any one of the above-mentioned circumstances must be carefully evaluated by the court, but does not alone disqualify an interpreter from providing services if the interpreter is able to render services objectively. The interpreter should disclose to the court any indication that the recipient of interpreting services views the interpreter as being biased. If an actual or apparent conflict of interest exists, the court must decide whether removal is appropriate based upon the totality of the circumstances.

SCR 63.04: PROFESSIONAL DEMEANOR. Interpreters shall conduct themselves in a manner consistent with the dignity of the court.

Comment: Interpreters should know and observe the established protocol, rules, and procedures for delivering interpreting services. When speaking in English, interpreters should speak at a rate and volume that enables them to be heard and understood throughout the courtroom. Interpreters should be as unobtrusive as possible and should not seek to draw inappropriate attention to themselves while performing their professional duties. This includes any time the interpreter is present, even though not actively interpreting.

Interpreters should avoid obstructing the view of anyone involved in the proceedings, but should be appropriately positioned to facilitate communication. Interpreters who use sign language or other visual modes of communication must be positioned so that signs, facial expressions, and whole body movements are visible to the person for whom they are interpreting and be repositioned to accommodate visual access to exhibits as necessary.

Interpreters are encouraged to avoid personal or professional conduct that could discredit the court.

Interpreters should support other interpreters by sharing knowledge and expertise with them to the extent practicable in the interests of the court.

SCR 63.05: CONFIDENTIALITY. Interpreters shall protect the confidentiality of all privileged and other confidential information.

Comment: Interpreters must protect and uphold the confidentiality of all privileged information obtained during the course of their duties. It is especially important that interpreters understand and uphold the attorney-client privilege that requires confidentiality with respect to any communications between attorney and client. This rule also applies to other types of privileged communications. Interpreters must also refrain from repeating or disclosing information obtained by them in the course of their employment that may be relevant to the legal proceeding.

If an interpreter has been appointed for a juror, the interpreter shall accompany a juror into the jury room and interpret for jury deliberations. The role of the interpreter in jury deliberations is neutral and nonparticipatory. The interpreter shall not disclose or comment upon jury deliberations.

In the event that an interpreter becomes aware of information that indicates probable imminent harm to someone or relates to a crime being committed during the course of the proceedings, the interpreter should immediately disclose the information to the presiding judge. In an emergency, the interpreter should disclose the information to an appropriate authority.

Interpreters shall never take advantage of knowledge obtained in the performance of duties, or by their access to court records, facilities, or privileges, for their own or another's personal gain.

SCR 63.06: RESTRICTION OF PUBLIC COMMENT. Interpreters shall not publicly discuss, report or offer an opinion concerning a matter in which they are or have been engaged, even when that information is not privileged or required by law to be confidential, except to facilitate training and education.

Comment: Generally, interpreters should not discuss interpreter assignments with anyone other than persons who have a formal duty associated with the case. However, interpreters may share information for training and education purposes, divulging only so much information as is required to accomplish this purpose. Unless so ordered by a court, interpreters must never reveal privileged or confidential information for any purpose, including training and education.

SCR 63.07: SCOPE OF PRACTICE. Interpreters shall limit themselves to interpreting or translating and shall not give legal or other advice, express personal opinions to persons using their services, or engage in any other activities which may be construed to constitute a service other than interpreting or translating while serving as an interpreter.

Comment: Since interpreters are responsible only for enabling others to communicate, they should limit themselves to the activity of interpreting or translating only, including official functions as described in the commentary to SCR 63.03. Interpreters, however, may be required to initiate communications during a proceeding when they find it necessary to seek direction from the court in performing their duties. Examples of such circumstances include seeking direction for the court when unable to understand or express a word or thought, requesting speakers to adjust their rate of speech, repeat or rephrase something, correcting their own interpreting errors, or notifying the court of reservations about their ability to satisfy an assignment competently. In such instances, they should make it clear that they are speaking for themselves.

Interpreters may convey legal advice from an attorney to a person only while that attorney is giving it. Interpreters should not explain the purpose or contents of forms, services, or otherwise act as counselors or advisors unless they are interpreting for someone who is acting in that official capacity. Interpreters may translate language on a form for a person who is filling out the form, but should not explain the form or its purpose for such a person.

While engaged in the function of interpreting, interpreters should not personally perform official acts that are the official responsibility of other court officials.

SCR 63.08: ASSESSING AND REPORTING IMPEDIMENTS TO PERFORMANCE. Interpreters shall assess at all times their ability to deliver their services. When interpreters have any reservation about their ability to satisfy an assignment competently, they shall immediately convey that reservation to the appropriate judicial authority.

Comment: If the communication mode, dialect, or speech of the person of limited English proficiency cannot be readily interpreted, the interpreter should notify the appropriate judicial authority, such as a supervisory interpreter, a judge, or another official with jurisdiction over interpreter matters.

Interpreters should notify the appropriate judicial authority of any circumstances (environmental or physical limitations) that impede the ability to deliver interpreting services adequately. These circumstances may include that the courtroom is not quiet enough for the interpreter to hear or be heard by the person of limited English proficiency, more than one person is speaking at the same time, or the speaker is speaking too quickly for the interpreter to adequately interpret. Sign language interpreters must make sure that they can both see and convey the full range of visual language elements that are necessary for communication, including facial expressions and body movements, as well as hand gestures.

Interpreters should notify the judge of the need to take periodic breaks in order to maintain mental and physical alertness and prevent interpreter fatigue. Interpreters should inform the court when the use of team interpreting is necessary.

Even competent and experienced interpreters may encounter situations where routine proceedings suddenly involve slang, idiomatic expressions, regional dialect, or technical or specialized terminology unfamiliar to the interpreter such as the unscheduled testimony of an expert witness. When such situations occur, interpreters should request a brief recess in order to familiarize themselves with the subject matter. If familiarity with the terminology requires extensive time or more intensive research, interpreters should inform the judge.

Interpreters should refrain from accepting a case if they believe its language and subject matter is likely to exceed their capacities. Interpreters should also notify the judge if, during the course of a proceeding, they conclude that they are unable to perform adequately for any reason.

SCR 63.09: DUTY TO REPORT ETHICAL VIOLATIONS. Interpreters shall report to the proper judicial authority any effort to impede their compliance with any law, any provision of this code, or any other official policy governing court interpreting and translating.

Comment: Because the users of interpreting services frequently misunderstand the proper role of interpreters, they may ask or expect the interpreters to perform duties or engage in activities that run counter to the provisions of the code or other law, rules, regulations, or policies governing court interpreters. It is incumbent upon the interpreters to explain their professional obligations to the user. If, having been apprised of these obligations, the person persists in demanding that the interpreters violate them, the interpreters should turn to a supervisory interpreter, a judge, or another official with jurisdiction over interpreter matters to resolve the situation.

SCR 63.10: PROFESSIONAL DEVELOPMENT. Interpreters shall improve their skills and knowledge and advance the profession through activities such as professional training and education, and interaction with colleagues and specialists in related fields.

Comment: Interpreters must improve their interpreting skills and increase their knowledge of the languages they work in professionally, including past and current trends in slang, idiomatic expression, changes in dialect, technical terminology, and social and regional dialects, as well as their applicability within court proceedings.

Interpreters should keep informed of all statutes, rules of court, and policies of the judiciary that govern the performance of their professional duties.

Interpreters should seek to elevate the standards of the profession through participation in workshops, professional meetings, interaction with colleagues, and reading current literature in the field.

SOURCES CONSULTED

National Center for State Courts Model Code of Professional Responsibility for Interpreters in the Judiciary; Best Practices Manual on Interpreters in the Minnesota State Court System, Code of Professional Responsibility for Interpreters in the Minnesota State Court System; Equal Access to the Courts for Linguistic Minorities, Final Report of the New Jersey Supreme Court Task Force on Interpreter and Translation Services; Code of Professional Responsibility of the Official Interpreters of the United States Courts; Fundamentals of Court Interpretation: Theory, Policy, and Practice (Gonzalez, Vasquez, Mikkelson); Code of Ethics, Registry of Interpreters for the Deaf; Code of Ethics, California State Courts; Code of Professional Responsibility for Interpreters in the Oregon Courts.

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