If a lawyer becomes a part-time criminal intake court commissioner, can the lawyer and the partner still take criminal defense cases?

Plain-English summary

Opinion E-82-13 addressed a lawyer who was a family court commissioner and city attorney, whose county had established a part-time court commissioner to preside at initial appearances in criminal and forfeiture actions. The lawyer's partner did criminal defense work, and both were on the county's public defender list. The lawyer asked, if appointed criminal intake court commissioner, how it would affect the partners' defense practice.

The committee answered: the partner is precluded from appearing in any action in which the lawyer acted as court commissioner (Question 1, yes); the partner is not precluded from representing defendants who had not appeared before the lawyer as commissioner (Question 2, no); the lawyer is not precluded from representing defendants who had not appeared before the lawyer as commissioner (Question 3, no); and either the lawyer or the partner may act as defense attorney in criminal cases in other counties of the same judicial district (Question 4, yes). The committee relied on Wis. Stat. sec. 757.22(3) (a practicing attorney may not office with a district attorney, municipal judge, or court commissioner unless a partner, and then may not practice before that municipal judge or court commissioner) and sec. 757.23 (a court commissioner shall not act in any matter in which the commissioner's law partner or anyone connected in the law business is interested or appears). It concluded the partner is prohibited not only from appearing before the lawyer but in any action in which the lawyer acted as commissioner.

Currency note

This opinion was issued in 1982, 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 together with Wis. Stat. secs. 757.22(3) and 757.23. Conflicts involving a lawyer's service in an adjudicative role are now addressed by SCR 20:1.12 / Model Rule 1.12, with general conflicts under 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 Treat this page as historical context, not current guidance.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: Could the commissioner's partner defend a case the commissioner had handled?

A: No. The committee held the partner is precluded from appearing in any action in which the lawyer acted as court commissioner.

Q: Could the partner or the commissioner defend cases the commissioner had not handled?

A: Yes. The committee found neither is precluded from representing defendants who had not appeared before the lawyer as commissioner.

Q: What about criminal cases in other counties of the same district?

A: Per the opinion, either the lawyer or the partner may act as defense attorney in criminal cases brought in other counties in the same judicial district.

Background and rules framework

The opinion turned primarily on Wis. Stat. secs. 757.22(3) and 757.23, which restrict practice by a court commissioner's partner and bar a commissioner from acting in matters involving the commissioner's law associates. Conflicts arising from a lawyer's adjudicative service are now addressed by SCR 20:1.12 / Model Rule 1.12, with imputation and general conflicts under SCR 20:1.7 and 20:1.10.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.24, 20.28 / Model Rules 1.7, 1.12 (conflicts; imputation) (former Code provisions)

Statutes:

• Wis. Stat. sec. 757.22(3) (attorney officing with a court commissioner; bar on practice before that commissioner)
• Wis. Stat. sec. 757.23 (commissioner may not act in matters involving the commissioner's law associates)

See also

• WI Ethics Op. E-83-20: A Family Court Commissioner as Advocate and Advisor
• WI Ethics Op. E-09-04: Family Court Commissioner and GAL Conflicts
• WI Ethics Op. E-82-15: Firm Counsel With a Member on the Client Board

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-82-13.pdf