When a police department's in-house legal advisor counsels an individual officer, is that officer a client, and can the advisor report the officer's confidences to the chief?

Plain-English summary

Opinion E-75-19 concerned a city police department's attorney-police legal advisor, essentially in-house counsel who reports and is responsible to the police chief. The advisor also consults with individual officers about possible policy violations, search-and-seizure law, and errors in performance of duty. The inquiry asked where the attorney-client relationship lies, whether the advisor may pass to the chief information an officer wanted kept confidential, and what the advisor must do if an officer's disclosure would support a disciplinary charge that the chief then asks the advisor to bring.

Applying Canon 4 and DR 4-101(B) (preserving and not misusing a client's confidences) and Canon 5's DR 5-101 (no representation where one client's interests conflict with another's or where independent judgment is impaired), the committee concluded that because the advisor reports and is primarily responsible to the chief, the attorney-client relationship is established at that level. Counseling individual officers under conditions where the advisor would receive confidential information that ought to be supplied to the chief, or that would be the basis for disciplinary charges, would present a serious conflict of interest.

The committee's resolution was that if the advisor is to counsel individual officers, the officers must be given clear warning that their communications cannot be treated as confidential and that the advisor is obligated to take personnel and disciplinary matters to the chief. The committee relied on ABA Informal Opinion 1282, which found a city corporation counsel could not represent the city against officers after obtaining information from them, as continued representation would violate DR 5-101(B). It added that if a legal advisor does obtain confidential information from an officer in an attorney-client context, he is barred from communicating it to the chief or using it against the officer, and would be foreclosed from representing the municipality in a suit against that officer using the information.

Currency note

This opinion was issued in 1975, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's Canon 4, DR 4-101(B), Canon 5, and DR 5-101. The current counterparts include SCR 20:1.13 / Model Rule 1.13 (organization as client), SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts), and SCR 20:1.6 / Model Rule 1.6 (confidentiality). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is a police department's in-house legal advisor the lawyer for individual officers?

A: Under this opinion, no. The committee concluded the attorney-client relationship is with the police chief, because the advisor reports and is primarily responsible to the chief.

Q: Can the legal advisor tell the chief what an officer disclosed in confidence?

A: It depends on whether an attorney-client relationship with the officer was formed. The committee said the advisor must warn officers that their communications are not confidential; but if the advisor did obtain confidential information in an attorney-client context, he is prohibited from communicating it to the chief or using it against the officer.

Q: Can the advisor then represent the department in disciplining that officer?

A: No, where confidential information was obtained from the officer. Following ABA Informal Opinion 1282, the committee said the advisor would be foreclosed from representing the municipality in an action against the officer using that information.

Background and rules framework

The opinion applied the former Code's confidentiality (Canon 4, DR 4-101(B)) and conflict (Canon 5, DR 5-101) provisions, with ABA Informal Opinion 1282, to a government lawyer who serves an organization (the department, through its chief) while also advising the organization's individual members. The current counterparts include SCR 20:1.13 / Model Rule 1.13 (organization as client), SCR 20:1.7 / Model Rule 1.7 (conflicts), and SCR 20:1.6 / Model Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.13 / SCR 20:1.13 (organization as client); former Code Canon 4, DR 4-101(B)
• Model Rule 1.7 / SCR 20:1.7 (concurrent conflicts of interest); former Code Canon 5, DR 5-101, DR 5-101(B)
• Model Rule 1.6 / SCR 20:1.6 (confidentiality of information)

Other opinions cited:

• ABA Informal Opinion 1282: city corporation counsel barred from representing the city against officers after obtaining their confidences

See also

• WI Ethics Op. E-82-9: Municipal Attorney Representing Police Officers
• WI Ethics Op. E-84-16: District Attorney Serving on a Community Board of Directors
• WI Ethics Op. E-07-01: Contact With Constituents of a Represented Organization

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-75-19.pdf