Can a lawyer represent a private client suing a county while, in a separate case, representing that same county?

Plain-English summary

Opinion E-80-20 asked whether a prohibited conflict arises when an attorney represents a plaintiff suing a county and, in an independent suit, represents the county against a different defendant. The committee answered that the outcome depends on the attorney's status, and it identified three categories: lawyers who are public officials, lawyers regularly employed by the county, and private practitioners who represent the county in some matters. It applied the general conflict standard of SCR 20.24, which requires the attorney to be convinced that professional judgment will not be affected, to make complete disclosure to all affected clients, and to obtain each client's consent.

For public officials, the committee held, drawing on prior opinions (Formal Opinions E-54-2 and E-65-1 and a 1967 memorandum), that an attorney who is a county official may not represent a private party against the county, because of the continuing conflict between the duty as a public official and the duty to a private client. For county employees, the committee applied SCR 20.24(1), 20.28(3), and 20.30(4): an employee may represent a private client against the same county only with the county employer's prior consent and on full disclosure and consent of the affected clients, given the separate, unrelated nature of the actions. For private practitioners, the committee applied SCR 20.24(1) and 20.28(3), concluding (consistent with Memorandum Opinion 8-77A on representing and opposing the same insurer in unrelated matters) that a private practitioner may represent the county in one suit and a plaintiff against the county in a separate suit, provided the disclosure and consent requirements are met.

Currency note

This opinion was issued in 1980, 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 provisions cited in the opinion. Concurrent conflicts, including suing a current client in an unrelated matter, are now governed by SCR 20:1.7 / Model Rule 1.7. 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 Treat this page as historical context, not current guidance.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: Can a county board member or other county official sue the county for a private client?

A: No. The committee held that lawyers who are county officials are categorically barred from representing private clients against the county.

Q: Can a lawyer who works for the county take a private client against that county?

A: Only with the county's prior consent and on full disclosure and consent of the affected clients, in separate unrelated matters, per SCR 20.24(1), 20.28(3), and 20.30(4).

Q: Can a private practitioner represent the county in one case and sue it in another?

A: Yes, the committee concluded, provided the practitioner complies with SCR 20.24(1) and 20.28(3) and obtains full disclosure and consent.

Background and rules framework

The opinion applied the former Wisconsin Supreme Court Rules on personal-interest conflicts (SCR 20.24(1)), multiple-client representation with consent (SCR 20.28(3)), and conflicts for regularly employed lawyers (SCR 20.30(4)). The current counterpart is the concurrent-conflict rule (SCR 20:1.7 / Model Rule 1.7), which generally treats suing a current client, even in an unrelated matter, as a conflict requiring informed consent.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.24(1) (personal-interest conflict; consent after full disclosure) (former Code)
• Wis. SCR 20.28(3) (multiple clients with consent) (former Code)
• Wis. SCR 20.30(4) (conflict with a regular employer) (former Code)
• Model Rule 1.7 (concurrent conflicts of interest)

Other opinions cited:

• State Bar of Wisconsin Formal Opinion E-54-2: council or board member may not represent a party against the municipality
• State Bar of Wisconsin Formal Opinion E-65-1: part-time district attorney may not represent a party against a state commission
• State Bar of Wisconsin Memorandum Opinion 8-77A: representing and opposing the same insurer in unrelated matters

See also

• WI Ethics Op. E-82-9: Municipal Attorney Representing Police Officers
• WI Ethics Op. E-89-7: Lawyer on a City Council and Representation Conflicts
• WI Ethics Op. E-86-12: Lawyer-Legislator Representing Clients Against Same-Unit Employees

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-80-20.pdf