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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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 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…
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…
What are a prosecutor's ethical duties when dealing with an unrepresented person in Wisconsin?
The opinion concludes that under the amended SCR 20:3.8 a prosecutor must identify their role and interest to an unrepresented person, must tell a person with a right to counsel how to obtain one and …
Does a prosecutor violate the no-contact rule when caseworkers from another county agency contact represented parents in a CHIPS case?
The opinion concluded that the prosecutor does not violate SCR 20:4.2 when county child-welfare workers contact represented parents while carrying out their statutory CHIPS investigation duties, becau…
Can a private party's lawyer contact government officials directly when the agency is represented by counsel in the matter?
The opinion concluded that under SCR 20:4.2 a lawyer for a private party generally may not directly contact covered government officials about a matter once the lawyer knows the agency is represented …
Can a prosecutor talk to an unrepresented criminal defendant about the case after charges are filed but before the first court appearance?
The opinion concluded that yes, a prosecutor may discuss the case with an unrepresented criminal defendant after a formal prosecution has begun by the filing and service of a summons and complaint but…
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 government lawyer contact a represented party without counsel's consent based on a Justice Department directive (the Thornburgh Memorandum)?
The opinion concluded that the answer to both questions is no. A Wisconsin-licensed government lawyer may not communicate about the subject of a representation with a party the lawyer knows to be repr…
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 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…
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…
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…
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…
May a Wisconsin district attorney mail motions and notices directly to a represented criminal defendant, or contact a child support payor who was once but is not now represented?
The opinion concluded that, absent consent of defense counsel or authorization by law, a district attorney may not communicate with a represented criminal defendant about the subject of the representa…
May a county lawyer let a county-employed physician negotiate a commitment agreement directly with a represented respondent without notifying the respondent's lawyer?
The opinion concluded that, absent prior notification of the respondent's counsel and counsel's consent, negotiations with a represented respondent conducted by the district attorney or other public e…
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 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 district attorney's office hire a part-time non-lawyer who also works part time in the court's register in probate office for the judge?
The opinion concluded there is no per se prohibition against a public or private law office employing a part-time non-lawyer who also holds other law-related employment. The committee concluded the sh…
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 an assistant attorney general own a controlling stake in a company that bids for state work, and can the rest of the department still handle matters involving that company?
The opinion concluded that owning the stock is not improper per se, but the assistant attorney general must decline Department of Justice matters relating to the company because his judgment for the s…
Can the law partner of a village attorney serve on the village's zoning board of appeals, which the village attorney advises?
The opinion concluded that the partner would not place himself in a conflict by serving on the zoning board of appeals, and that the village attorney may continue to serve while the partner sits on th…
Can an assistant district attorney serve on a community mental-health board of directors while also representing the public in mental-health commitment proceedings?
The opinion concluded that the dual roles are not necessarily incompatible: an assistant district attorney may serve on a Chapter 51 community board while handling mental-health commitment proceedings…
When a complainant in a criminal matter is represented by a lawyer, may the prosecutor copy the complainant directly on a response sent to that lawyer?
The opinion concluded that the no-contact rule applies in the non-adversary criminal context, so a prosecutor may not communicate in any way with a represented complainant on the subject of the repres…
What must a public defender and a supervising lawyer do when assigned caseloads grow too large for competent representation?
The opinion concluded that a staff public defender facing an unmanageable caseload should, except in extreme or urgent cases, decline new matters and withdraw from enough pending matters to handle the…
Can a Family Court Commissioner act as advocate prosecuting a child-support contempt action while also serving as advisor to the trier of fact?
The opinion concluded that a Family Court Commissioner may not act as advocate and advisor simultaneously, because the appearance of impropriety in serving both competing roles is too significant; on …
Can an assistant corporation counsel who represents the state in a paternity action also represent the mother in the same proceeding?
The opinion concluded that the corporation counsel may represent both the state and the mother in a paternity action, provided the mother is advised at the outset of counsel's primary duty to the stat…
Can a municipal attorney represent both the city and its police officers in a suit against both over alleged excessive force?
The opinion concluded that a municipal attorney cannot represent both the municipality and its police officers where their interests differ, and a private attorney paid by the municipality may represe…
Can a government agency lawyer send the opposing lawyer's client copies of correspondence sent to that lawyer?
The opinion concluded that doing so violates the no-contact rule even when the client has a strong interest in the matter; to address a dilatory opposing lawyer, the agency lawyer may send copies to t…
If a city attorney is called as a witness by the opposing party, must the attorney withdraw from representing the city?
The opinion concluded that the city attorney need not withdraw when called as a witness by the adverse party (rather than on the city's behalf), subject to the rules, the client's consent, and the tri…
Can a law firm be paid to represent a public education district when one of the firm's lawyers sits on that district's board?
The opinion concluded that yes, the firm may represent the district for compensation if the board member makes full disclosure, abstains from the decision to retain the firm, and the firm's duties are…
If a lawyer becomes a part-time criminal intake court commissioner, can the lawyer and the partner still take criminal defense cases?
The opinion concluded that the commissioner's partner is barred from appearing in any action in which the commissioner acted, but neither the commissioner nor the partner is barred from defending case…
Can a part-time municipal prosecutor defend private clients on charges from other jurisdictions that are tried in the same court where the prosecutor tries the municipality's ordinance cases?
The opinion concluded that the 'same court' is not itself a barrier. It found Memo Opinion 5/65, which had imposed a same-court restriction, contrary to Opinions E-76-12 and E-81-3, reaffirmed those t…
Can a part-time town attorney who prosecutes ordinance violations defend clients in prosecutions brought by other municipalities?
The opinion concluded that a part-time town attorney may defend a private client against an ordinance prosecution brought by a different town, within limits, as long as the attorney had assumed no pro…
Can a deputy city attorney who negotiates and monitors the city's insurance carrier contract also sit on that carrier's board of directors?
The opinion concluded that it would be improper. A deputy city attorney who represents the city in contract negotiations with its insurance carrier and monitors the carrier's performance cannot simult…
Can a lawyer represent a private client suing a county while, in a separate case, representing that same county?
The opinion concluded that lawyers who are county officials are barred from suing the county for a private client, while county employees and private practitioners may do so in separate matters only w…
Is a law firm disqualified from representing a client when a state agency official with regulatory power over that client joins the firm?
The opinion concluded that whenever the former agency official would be disqualified under the Wisconsin public-official statutes and Canons 4, 5, and 9, each member of the firm would be disqualified …
Can a prosecutor amend a criminal complaint up from a misdemeanor to a felony after the defendant pleads not guilty?
The opinion concluded that, on these facts, it is not ethically improper to amend a complaint up from a misdemeanor to a felony after the defendant declines to plead guilty, because the prosecutor nee…
Can a lawyer who serves as a state legislator represent clients for compensation before a state agency the legislature funds and oversees?
The opinion concluded that an attorney-legislator should be prohibited from representing clients for compensation before a state agency over which the legislature exercises appointment, removal, and b…
Can a part-time city or village attorney take private criminal defense cases in the same county where the district attorney prosecutes?
The opinion concluded that it generally is not improper. A part-time municipal attorney who handles only traffic and ordinance matters for the city may defend private clients on criminal or state moto…
Can the law partners of a part-time assistant district attorney defend private criminal clients if there is full disclosure and consent?
The opinion concluded that they cannot. A part-time assistant district attorney may do no criminal defense work, and that disqualification extends to the partners and associates of the firm, even with…
Can a lawyer who serves as a city council member or county supervisor represent private clients in suits involving the city or county?
The opinion concluded that it depends on the matter. A supervisor may not represent a private party in a claim against his own county; a council member's defense of an ordinance he had substantial res…
When a police department's in-house legal advisor counsels an individual officer, is that officer a client, and can the advisor report the officer's confidences to the chief?
The opinion concluded that the advisor's attorney-client relationship is with the police chief, not the individual officers. Counseling officers risks a serious conflict, so officers must be warned th…
Can a district attorney who is salaried as a full-time prosecutor (one not permitted to practice privately) also take private legal clients?
The opinion concluded that the answer turns on the statute. A district attorney paid under the provision for prosecutors not permitted to practice privately owes the county all of his professional tim…
Can the partners of a lawyer who sits on a city police and fire commission represent criminal and traffic defendants in that city?
The opinion concluded they may not, in the cases the commissioner-partner must avoid. No partner may represent criminal or traffic defendants where the partner on the commission would have to abstain;…
Can the law partners of a lawyer who is bargaining agent for a deputy sheriffs' association take criminal defense cases in that county?
The opinion concluded they may. The committee found no inherent conflict that would absolutely foreclose the partners from criminal or juvenile defense work, but the lawyer must advise the client of t…
Can a lawyer who is also a municipal justice of the peace represent clients in matters opposed to the same city?
The opinion concluded the lawyer may not. A municipal justice of the peace is an officer of the city, so representing police officers in wage negotiations against that city, or private clients adverse…
Can a district attorney represent a private landowner in a condemnation case brought by the state, while the county and state are his public clients?
The opinion concluded the district attorney may not. A full-time or part-time district attorney represents the county and state at all times, and taking a condemnation case against the state highway c…
Can a lawyer who is a city council or county board member sue that same city or county on behalf of a private client?
The opinion concluded the lawyer should not. An attorney who serves on a city council or county board cannot give undivided loyalty both to the governing body and to a client suing that body, so repre…
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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.