Can a lawyer who serves as a state legislator represent clients for compensation before a state agency the legislature funds and oversees?

Plain-English summary

This opinion was overruled by Wisconsin Ethics Opinion E-78-2. The opinion itself also expressly overruled any inconsistent parts of the committee's earlier Informal Opinion E-1973. It is indexed here for historical research; it is not current guidance.

Opinion E-76-2 considered Attorney A, who was elected to the Wisconsin Legislature. The Senate must consent to the Governor's nominee to head state agency B, the Legislature may remove the agency head by joint resolution (Wis. Stat. § 13.30), and Attorney A would introduce, discuss, and vote on bills affecting the agency's budget, staff, and duties. The question was whether the Code of Professional Responsibility prohibited Attorney A from representing clients for compensation before state agency B.

The committee analyzed Canon 8 (a lawyer should assist in improving the legal system), including DR 8-101(A)(2), which barred a lawyer holding public office from using the position to influence a tribunal in favor of himself or a client, and Canon 9 (avoiding even the appearance of professional impropriety), including DR 9-101(C). It recognized that the position of lawyer-legislator is unique and that ethics rules should not be read to prevent an attorney from participating in public affairs or holding public office. But it found that because Attorney A had control over the agency's personnel, compensation, and duties, the public, and in time his clients, might believe some impropriety existed depending on his success before the agency, even if both the legislator and the agency acted with caution.

The committee concluded that, to comply with the cited Canons and Disciplinary Rules and to avoid even the appearance of impropriety, Attorney A should be prohibited from representing clients for compensation before state agency B and all other state agencies so composed. It added that the opinion did not prohibit a lawyer-legislator from conducting a general law practice when not engaged in legislative duties, nor from appearing before tribunals other than such state agencies, as long as those appearances did not conflict with the Canon 8 duties.

Currency note

This opinion was overruled by Wisconsin Ethics Opinion E-78-2. It was issued in 1976, 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 Canons 8 and 9 (DR 8-101, DR 9-101) together with Wis. Stat. § 13.30. The general conflict-of-interest framework is now SCR 20:1.7 / Model Rule 1.7. Because the opinion has been overruled and rests on a superseded rule set, treat this page as historical context only, not current guidance. Verify against current rules and current committee opinions before relying on any specific rule or restriction mentioned here.

Common questions

Q: Is this opinion still good law?

A: No. The committee that issued it later overruled it in Opinion E-78-2, so it is indexed only as historical research.

Q: What did E-76-2 originally conclude?

A: It concluded that an attorney-legislator should be prohibited from representing clients for compensation before a state agency the legislature appoints, can remove, and funds, in order to avoid even the appearance of impropriety.

Q: Did the original opinion bar all of a lawyer-legislator's practice?

A: No. It said the lawyer-legislator could still conduct a general practice and appear before tribunals other than such state agencies, as long as those appearances did not conflict with the duties it discussed under Canon 8.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / SCR 20:1.7 (concurrent conflicts of interest); former Code Canon 8 (DR 8-101), Canon 9 (DR 9-101)

Statutes:

• Wis. Stat. § 13.30 (removal of state agency head by the legislature)

Other opinions cited:

• Wisconsin Opinion E-78-2 (overruled this opinion)
• Wisconsin Informal Opinion E-1973 (overruled in part by this opinion)

See also

• WI Ethics Op. E-86-12: Lawyer-Legislator Representing Clients Against Same-Unit Employees
• WI Ethics Op. E-80-20: Representation For and Against a County
• WI Ethics Op. E-79-1: Disqualification When a Former Official Joins a Firm

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-76-2.pdf