Can a Family Court Commissioner act as advocate prosecuting a child-support contempt action while also serving as advisor to the trier of fact?

Plain-English summary

Opinion E-83-20 addressed a Family Court Commissioner's Office that was under contract with the District Attorney's Office to provide services to non-AFDC individuals pursuing non-support actions, including preparing and presenting contempt proceedings against a non-paying spouse. The questions were whether the Family Court Commissioner may appear as advocate in these proceedings while acting as advisor to the trier of fact, and whether the Commissioner may pursue the contempt action if a special assistant Family Court Commissioner acted as advisor to the trier of fact.

The committee answered that the Family Court Commissioner may not act as advocate and advisor simultaneously. It explained that, although the former Code recognized a lawyer may serve as both advocate and advisor, it treated the two roles as essentially different: an advocate urges any permissible construction of the law favorable to the client, while an advisor gives a professional opinion and owes no duty to the general public (SCR 20.34(1)(c)). The committee was not convinced the Commissioner could adequately serve both competing interests, and, while aware that Wis. Stat. sec. 767.29 authorizes the Commissioner to pursue non-support actions including enforcement by contempt, found the appearance of impropriety in such simultaneous representation so significant that the representation was improper (SCR 20.48). On the second question, the committee found SCR 20.28(4), the imputed-disqualification provision, controlling.

Currency note

This opinion was issued in 1983, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code, including its now-abandoned "appearance of impropriety" standard. Conflicts of interest 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 Treat this page as historical context, not current guidance.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 Family Court Commissioner prosecute a support contempt action and also advise the trier of fact in it?

A: No. The committee concluded the Commissioner may not act as advocate and advisor simultaneously, finding the appearance of impropriety too significant.

Q: Did the statute authorizing the Commissioner to pursue non-support actions change the result?

A: No. The committee acknowledged Wis. Stat. sec. 767.29 but still found the simultaneous advocate-advisor role improper.

Q: What governed whether a special assistant could advise the trier of fact instead?

A: The committee found the imputed-disqualification provision (SCR 20.28(4)) controlling on that second question.

Background and rules framework

The opinion interpreted the former Code's recognition of distinct advocate and advisor roles (SCR 20.34), its appearance-of-impropriety standard (SCR 20.48), and its imputation rule (SCR 20.28(4)). Conflicts of interest are now governed by SCR 20:1.7 / Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.34, 20.48 / Model Rule 1.7 (advocate vs advisor; appearance of impropriety) (former Code provisions)
• Wis. SCR 20.28(4) / Model Rule 1.10 (imputed disqualification) (former Code provision)

Statutes:

• Wis. Stat. sec. 767.29 (enforcement of support)

See also

• WI Ethics Op. E-87-1: City Attorney as Advocate and Advisor to an Appellate Board
• WI Ethics Op. E-89-15: City Attorney Advisor and Advocate Roles
• WI Ethics Op. E-86-11: IV-D Director Conflicts in Support Proceedings

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-83-20.pdf