State Bar of Wisconsin Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the State Bar of Wisconsin, with full citations and source links on every page.
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How does a Wisconsin criminal defense lawyer handle a client whose competency to stand trial is in doubt?
The opinion concludes that in criminal cases constitutional and Wisconsin competency law largely supplants SCR 20:1.14: when there is reason to doubt the client's competence the lawyer must notify the…
Can a Wisconsin lawyer who will be a necessary witness also serve as the advocate at the same trial?
Generally no. The opinion concludes that under SCR 20:3.7 a lawyer who is likely to be a necessary witness may not act as advocate at the same trial unless an exception applies, and because the rule p…
How do conflict-of-interest and confidentiality rules apply to a Wisconsin guardian ad litem who represents a ward's best interests rather than the ward personally?
The opinion concludes that a guardian ad litem (who must be a lawyer in Wisconsin) has a client for disciplinary purposes, the 'best interests' of the ward, and analyzes conflicts under SCRs 20:1.7, 1…
What conflicts arise when a Wisconsin criminal defense lawyer moves to a prosecutor's office, or a prosecutor moves to a defense firm?
The opinion concludes that a defense lawyer who interviews to become a prosecutor or who runs for district attorney has a personal conflict in every criminal case and may continue only with each clien…
Can a Wisconsin lawyer cross-examine a current or former client who is an adverse witness in another case?
The opinion concludes that cross-examining a current client is always a conflict under SCR 20:1.7 that requires both clients' signed informed consent to continue, and cross-examining a former client i…
When a client or third party files a grievance against a Wisconsin lawyer, must the lawyer withdraw, and what can the lawyer disclose?
The opinion concludes that the mere filing of a grievance does not by itself create a conflict requiring withdrawal or client consent, though it may support permissive withdrawal; but if the grievance…
When does a Wisconsin lawyer seeking a job with an opposing firm or party have a conflict of interest in the case they are handling?
The opinion concludes that a lawyer with an active, material role in a matter has a personal-interest conflict under SCR 20:1.7(a)(2) once the lawyer sends a targeted, specific expression of interest …
Can one lawyer represent both spouses in a divorce, even when they fully agree on the terms?
The opinion concludes that a lawyer may not represent both spouses in a divorce, even a friendly one, because divorce is litigation in which one spouse's claim is asserted against the other, a non-con…
Does a lawyer who drafts a form contract for one client have a conflict if another client might later negotiate against it?
The opinion concludes that drafting a form contract for a client is not, by itself, a conflict merely because the form might later be used against another client of the firm; there is no direct advers…
Can a lawyer who also owns a financial-planning business advertise her law practice there and offer legal services to that business's clients?
She may mention her law practice in the side business's marketing if it meets SCR 20:7.1 and 7.2, but SCR 20:7.3(a) bars her from offering legal services in person to that business's clients; she may …
Can a part-time assistant district attorney also defend criminal cases in private practice, and what happens to the lawyer's firm?
The opinion concludes that because a Wisconsin prosecutor's client is the State, a part-time assistant district attorney has a non-waivable conflict barring the lawyer from representing criminal defen…
When does talking to a prospective client who does not retain you disqualify you from representing the other side?
The opinion concludes that under SCR 20:1.18(c) a lawyer who consulted a prospective client may later represent an adverse party in the same or a substantially related matter unless the lawyer receive…
Can a Family Court Commissioner later serve as guardian ad litem in a case the commissioner already acted on?
The opinion concludes that under SCR 20:1.12(a) a lawyer who participated personally and substantially in a matter as a Family Court Commissioner (an adjudicative officer) cannot later act as guardian…
Can a lawyer accept a fee or commission for recommending a nonlawyer service provider to a client?
The opinion concluded that the rules did not flatly prohibit a lawyer from receiving consideration for recommending a nonlawyer's services to a client, but that a referral fee which in substance incre…
What must lawyers do when they share office space, staff, and equipment with other lawyers or with nonlawyers?
The opinion concluded that the rules did not prohibit lawyers from sharing office space, staff, or equipment with other lawyers or nonlawyers, provided they protected client confidences, did not hold …
Can one lawyer represent both the host driver and the guest passenger in a car-accident personal injury claim?
The opinion concluded that joint representation of a host driver and guest passenger was not per se prohibited, but turned on a conflicts analysis under SCR 20:1.7. The lawyer could not represent both…
Can defense counsel for an insured send billing detail to the insurer's outside auditor, and must counsel accept the insurer's defense restrictions?
The opinion concluded that a lawyer representing both an insurer and an insured could not submit billing detail containing confidential information to the insurer's outside auditor without the insured…
When may a Wisconsin law firm use temporary or contract attorneys, and what conflict and confidentiality rules apply?
The opinion adopted ABA Formal Opinion 88-356, concluding that a firm may use temporary or contract lawyers if the firm and the lawyer guard against conflicts of interest, maintain confidentiality, an…
Does a volunteer attorney giving general legal information form an attorney-client relationship, and can they advise both sides?
The opinion concluded that whether an attorney-client relationship forms is a fact question turning on the parties' intent. It is not formed merely because a caller knows the volunteer is an attorney,…
Can in-house counsel represent someone other than the employer, at the employer's direction, while still being paid by the employer?
The opinion concluded that in-house counsel may, with safeguards, represent a third party at the employer's direction while paid by the employer, but in doing so steps outside the in-house role. The o…
Can an estate-planning lawyer hire a financial planner to inventory assets, explore options, and witness documents for the lawyer's clients?
The opinion concluded that yes, an estate-planning lawyer may retain a financial planner, with the client's knowledge and consent and at a reasonable fee, provided the arrangement complies with SCR 20…
When may a lawyer or law firm use the 'of counsel' title, and what conflicts does the relationship create?
The opinion concluded that, adopting ABA Formal Opinion 90-357, a lawyer or firm may use 'of counsel' (or variants such as 'counsel,' 'special counsel,' or 'senior counsel') only when the relationship…
In a child-support enforcement case, what does a corporation counsel who represents only the state have to tell the parents and child?
The opinion concluded that a corporation counsel or district attorney providing child-support enforcement services under Wis. Stat. § 767.075(2)(a) represents only the state, with no attorney-client r…
Can a personal injury lawyer's direct-mail letter say the lawyer can suggest health-care providers to accident victims who have no treating doctor?
The opinion concluded that such advertising is misleading without a caveat. Telling accident victims by targeted direct mail that the lawyer 'can suggest various health-care providers' is misleading u…
Can a lawyer use a client's contingent-fee contract or attorney's lien as collateral for the lawyer's own personal loan?
The opinion concluded that under no circumstances may a lawyer use a contingent-fee contract with a client as security for a personal loan to the lawyer. Although SCR 20:1.8(j)(2) permits a reasonable…
Can a lawyer help a company market and prepare living trust plans sold to the public by nonlawyer salespeople?
The opinion concluded that a lawyer who participates in a company's marketing of living trust products faces serious problems. Drawing on its earlier Opinion E-90-7, the committee warned of nonwaivabl…
Can one lawyer represent both an injured plaintiff and the plaintiff's subrogated health insurer in the same personal injury claim?
The opinion concluded that joint representation may be possible, but only with care, because there are clear potential conflicts. The plaintiff and the subrogated carrier share the goal of recovering …
If a public defender supervisor assigns a caseload above recognized standards and a staff lawyer declines new cases, can the supervisor discipline that lawyer?
The opinion reaffirmed earlier Formal Opinion E-84-11 and concluded that the committee cannot resolve the employment-relations question, but that exceeding recognized maximum caseload standards, or im…
Can a Wisconsin lawyer work with a company that sells living-trust and estate-planning products to review or draft documents for its customers?
The opinion concluded that whether the organization is engaged in the unauthorized practice of law is a threshold issue the committee could not decide, but if it is, a lawyer may not assist it under S…
Can a public defender office set up a separate conflicts unit so its lawyers can represent co-defendants whose interests conflict, the way a separate firm could?
The opinion concluded that because the State Public Defender Office is a single 'firm,' the Rules prohibit one trial-division lawyer and one conflicts-office lawyer from representing co-defendants wit…
Can a part-time city attorney, or another lawyer in the same firm, defend criminal cases in which city police officers may be witnesses?
The opinion concluded that such representation should not be accepted unless the lawyer or firm can fully comply with SCR 20:1.7(b), which would require the informed written consents of the appropriat…
What ethics rules constrain a company's in-house counsel who is asked to let the employer bill other entities for the lawyer's work, do personal legal work for the owner or the owner's family, or represent affiliated companies?
The opinion concluded that full-time house counsel may not take part in any arrangement under which the employer charges other entities for the lawyer's legal services, because a for-profit business m…
If a lawyer also serves on a city council, can the lawyer (or the lawyer's firm) represent private clients before that council or the city's boards and commissions?
The opinion concluded that under SCR 20:1.11 a lawyer-councilmember may not represent a private client in a matter the lawyer participated in personally and substantially as a public officer unless th…
A law firm represented both spouses on business and property matters for years. Can the firm now represent the husband in a divorce against the wife?
The opinion concluded that although the firm's prior business and property work for the couple was not the same as the divorce, it was substantially related under SCR 20:1.9 because the firm would be …
If one spouse is the district attorney and the other practices criminal defense at a local firm, can their offices be on opposite sides of the same cases?
The opinion concluded that under SCR 20:1.8(i) there is no imputed disqualification based solely on a spousal relationship, so the district attorney may prosecute defendants represented by the spouse'…
Can a city attorney who normally advises a city council or committee also act as the city's advocate before that same body on a matter where it has separate counsel?
The opinion concluded that yes, a city attorney who advises most city committee and council business may act as the city's advocate before a committee or council on a matter for which that body has in…
Is it a conflict of interest for one lawyer to serve at the same time as a party's attorney of record and as the guardian ad litem?
The opinion concluded that there is no inherent conflict in a lawyer simultaneously serving as attorney of record and as guardian ad litem, a practice the Wisconsin Supreme Court sanctions and monitor…
Can a lawyer represent both the majority and minority investors when forming a partnership or corporation, and keep representing one of them if the joint representation has to end?
The opinion concluded that a lawyer may generally represent both majority and minority investors in forming a business if the lawyer complies with the intermediary rule SCR 20:2.2 and the conflict rul…
Can a lawyer (or the lawyer's firm) handle divorce cases when the lawyer's spouse is the county's only social worker doing the custody and abuse studies in those cases?
The opinion concluded that the Rules of Professional Conduct do not prohibit a lawyer from representing a party or guardian ad litem in a divorce where the lawyer's spouse is the sole county social wo…
If a lawyer will probably have to testify from personal knowledge for the client, must the lawyer and the firm withdraw from the case?
The opinion concluded that, unlike the pre-1988 rules, SCR 20:3.7 does not automatically disqualify a lawyer's firm when the lawyer testifies for the client on a contested issue. SCR 20:3.7(b) lets ot…
In a private adoption, can a lawyer advertise for birth mothers, broker the match between birth and adoptive parents, and represent only the adoptive parents?
The opinion concluded that whether a lawyer may solicit or advertise for birth mothers the lawyer will not represent first depends on whether that conduct is legal under Wisconsin law, and if legal, t…
When a lawyer leaves an office-sharing practice to become an assistant city attorney, can he appear before a relative who is a municipal judge, prosecute his old firm's former clients, or face his relatives as defense counsel?
The opinion concluded that the new assistant city attorney may not appear before his office-mate relative sitting as municipal judge, because SCR 60.03 would require the judge to recuse and SCR 20:8.4…
A lawyer is defending a small corporation in two lawsuits and is also representing its sole shareholder in his divorce. Can the lawyer keep doing both?
The opinion concluded that the lawyer may continue both representations if the divorcing spouse (the petitioner) is not individually a client in the corporate lawsuits, because then there is no direct…
Can a lawyer defend another lawyer in a malpractice case when the two firms regularly appear against each other as opposing counsel in unrelated matters?
The opinion concluded that counsel offered a retainer by a lawyer-malpractice defendant's insurer should decline the representation, absent the defendant firm's informed consent, where counsel has or …
Can a former in-house lawyer later represent clients against the former corporate employer in matters that were not pending while the lawyer was employed there?
The opinion concluded there is no per se bar to a former house counsel representing clients against a former corporate employer in matters that were not pending before or at the time employment ended.…
Can a lawyer who served as a child's guardian ad litem in a protective services case later prosecute a termination of parental rights case involving the same child?
The opinion concluded that an attorney who once acted as guardian ad litem for a child in a protective services proceeding may not later act as prosecutor (or as defense counsel) in a termination of p…
Can a lawyer propose or agree to a settlement that requires the lawyer to personally indemnify and hold the other side harmless against unknown lien claims on the settlement?
The opinion concluded that under both the former Code and the new Rules, including such indemnification and hold-harmless provisions in settlement agreements is improper, so lawyers may not propose, d…
Can a city attorney's office both prosecute the city's case and advise the city board or commission that decides that same matter?
The opinion concluded that a city attorney's office may not serve both as an advocate of the city and as an advisor to a city appellate board or commission in proceedings involving the same matter. Bu…
Does a prosecutor have an ethical duty to disclose to the defense a witness who could help the defendant, and may a prosecutor tell a witness not to talk to the defense?
The opinion concluded that a prosecutor has no duty to actively encourage a witness to talk with the defense but has a duty to timely disclose the existence and whereabouts of a known potential witnes…
After a lawyer's spouse becomes a full-time family court commissioner, can the lawyer continue a family law practice in the same county?
The opinion concluded that the remaining sole practitioner may not represent clients in matters that would prospectively involve action by the commissioner spouse in his or her official capacity, but …
Can a lawyer who is also a licensed real estate broker take a referral commission for sending a client to a realtor, and charge both legal and brokerage fees in the same matter?
The opinion concluded that a lawyer who is also a real estate broker may accept a referral fee from a realtor for referring a current client only with the client's express consent at the time of the r…
Must a prosecutor who is sued by a criminal defendant step aside and ask for a special prosecutor to avoid a vindictiveness claim on appeal?
The opinion concluded that a prosecutor sued by a defendant in a related federal lawsuit is not required to seek or recommend appointment of a special prosecutor to head off a possible appeal based on…
Can a lawyer's firm sue an insurer or fund on whose board of directors the lawyer sits?
The opinion concluded that a lawyer's firm, and any partner, shareholder, or associate, may not represent interests adverse to an insurance company and insurance fund for which the lawyer serves as a …
Can a small city attorney's office prosecute a city employee who regularly investigates and testifies for the city in other ordinance cases?
The opinion concluded that a small city attorney's office should not prosecute a city employee for an ordinance violation where the office has a close and continuing working relationship with that emp…
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?
The opinion concluded there is no per se prohibition against a lawyer-legislator or lawyer-county board member representing persons in Children's Code or Public Assistance proceedings in which employe…
Can a county child support (IV-D) director represent a custodial parent in a support case after representing the opposing party, or while representing the spouse of a new marriage against a former spouse?
The opinion concluded a IV-D director may not represent a custodial parent against a party the attorney previously represented on substantially the same issues, because representation against a former…
If an assistant district attorney is married to a deputy sheriff in the same county, must the prosecutor treat cases the spouse investigated differently?
The opinion concluded that an assistant district attorney need not treat cases investigated by a deputy-sheriff spouse differently from cases investigated by other law enforcement personnel, provided …
Can a firm that earlier gave a buyer a title opinion later represent the lender foreclosing on that same property against the former client?
The opinion concluded that whether a lawyer may oppose a former client turns on whether the subject matter of the former representation is substantially related to the present one. A firm retained to …
Can a firm that once defended a business in a collection case later represent a different client suing or defending against that former client in an unrelated dispute?
The opinion concluded that whether representation adverse to a former client is permitted turns on whether the new matter is substantially related to the former one, that is, whether the lawyer was so…
Can a lawyer represent a law partner who is a defendant in a personal lawsuit and is expected to testify as a witness in his own case?
The opinion concluded that the lawyer-as-witness prohibition, which requires a lawyer to withdraw when the lawyer or a firm lawyer ought to be called as a witness for the client, does not apply when t…
Browse State Bar of Wisconsin opinions by topic
Legal ethics opinions from the State Bar of Wisconsin interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.