Can a lawyer who is a state legislator or county board member represent private clients in cases where employees of that same governmental unit testify?
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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-86-12 asked whether a lawyer who is a county board member or state legislator may represent persons in Chapter 48 (Children's Code) and Chapter 49 (Public Assistance) proceedings in which employees of the same governmental unit testify. The committee concluded that, provided the lawyer-legislator or lawyer-county board member abstains from participating in or otherwise attempting to influence legislative actions specifically and directly affecting such employees individually (for example, establishing salary or conducting a personnel action), no basis exists for a per se prohibition against the representation. It cited its earlier Formal Opinion E-75-25 and, in accord, the Arizona decision Gomez v. Superior Court.
The committee added a reminder of the prohibition against using a public position to gain an advantage for the lawyer or a client, citing the former Code provisions SCR 20.46(2), 20.48(4), and 20.49(3).
Currency note
This opinion was issued in 1986, 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. The conflict-of-interest framework is now found in SCR 20:1.7 / Model Rule 1.7, and the misuse-of-position concern is reflected in Model Rule 8.4. 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 Treat this page as historical context, not current guidance.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 lawyer who holds elected office represent clients in cases involving that government's employees?
A: The committee concluded there is no per se bar, provided the lawyer abstains from legislative actions specifically and directly affecting those employees individually.
Q: What conduct must the lawyer-legislator avoid?
A: Per the opinion, participating in or attempting to influence legislative actions affecting the testifying employees individually, such as their salaries or personnel actions, and using the public position to gain an advantage for the lawyer or a client.
Background and rules framework
The opinion interpreted the former Code's provisions barring use of a public position for advantage (SCR 20.46(2), 20.48(4), 20.49(3)), concerns now reflected in Model Rule 8.4 and the conflict-of-interest rule SCR 20:1.7 / Model Rule 1.7, applied to a lawyer who simultaneously holds legislative office and a private practice.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.46(2), 20.48(4), 20.49(3) / Model Rule 8.4, Model Rule 1.7 (use of public position; conflicts) (former Code provisions)
Cases:
- Gomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902 (1986)
Other opinions cited:
- Wisconsin Formal Op. E-75-25
See also
- WI Ethics Op. E-87-1: City Attorney as Both Advocate and Advisor
- WI Ethics Op. E-88-2: Successive Government Employment and Related Lawyers
- WI Ethics Op. E-86-14: City Attorney Prosecuting a City Employee
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-86-12.pdf
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