Can a lawyer who serves as a court commissioner represent private clients in litigation before the judge who appointed him?

Plain-English summary

Opinion E-69-2 considered whether it is proper for a court commissioner to appear in private litigation before the judge who appointed him. The committee concluded that it is proper. It relied on an Attorney General opinion (22 Op. Att'y Gen. 991) holding that no question of incompatibility arises because incompatibility concerns only public offices, and an attorney, though sometimes called an officer of the court, is not a public officer in that sense. The committee observed that the commissioner owes his appointment to the judge, not the reverse, so the judge has no tendency or incentive to curry favor by showing partiality to the commissioner.

The committee placed the responsibility on the judge rather than the lawyer, quoting ABA Formal Opinion 200 to the effect that a lawyer need not refuse employment merely because the case may be heard by a relative; the duty is on the judge not to sit unless free from bias and the appearance of bias. It noted that Wisconsin requires a judge to disqualify himself for kinship (sec. 256.21) and quoted Rule 1 of the Wisconsin Code of Judicial Ethics, effective January 1, 1968, on the conflicts of interest that automatically disqualify a judge.

In light of that rule, the committee recommended that in all cases where a court commissioner appears before the appointing judge, the commissioner disclose the fact to opposing counsel. It found no reason for the judge to disqualify himself merely because he appointed the attorney, observing that other appointees of a judge, such as guardians ad litem and counsel for indigents, regularly appear in contested litigation before the appointing judge.

Currency note

This opinion was issued in 1969, 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 conflict-of-interest principles together with Rule 1 of the then-current Wisconsin Code of Judicial Ethics. The conflict principles for lawyers are now reflected in SCR 20:1.7 / Model Rule 1.7, and judicial disqualification is now governed by the Wisconsin Code of Judicial Conduct (SCR Chapter 60). 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 Treat this page as historical context, not current guidance.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 is a court commissioner appear before the judge who appointed him?

A: Under this opinion, yes. The committee found the practice proper, reasoning that the commissioner is not a public officer for incompatibility purposes and that the judge, not the lawyer, bears the duty to avoid impropriety.

Q: Must the judge disqualify himself because he appointed the lawyer?

A: No. The committee saw no reason for disqualification on that basis alone, noting that guardians ad litem and appointed counsel for indigents routinely appear before the appointing judge.

Q: Did the committee impose any condition?

A: It recommended that the commissioner disclose the appointment to opposing counsel in all such cases.

Background and rules framework

The opinion applied conflict-of-interest principles and Rule 1 of the Wisconsin Code of Judicial Ethics (judicial disqualification for kinship or financial interest), informed by ABA Formal Opinion 200. The current counterparts are SCR 20:1.7 / Model Rule 1.7 for lawyer conflicts and the Wisconsin Code of Judicial Conduct (SCR Chapter 60) for judicial disqualification.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / SCR 20:1.7 (conflicts of interest; current clients); former conflict principles; Wisconsin Code of Judicial Ethics Rule 1

Statutes:

• Wis. Stats. secs. 256.21, 256.22, 256.23 (court commissioners; judicial disqualification)

Cases:

• 22 Op. Att'y Gen. 991, cited for the conclusion that a court commissioner is not a public officer for incompatibility purposes

Other opinions cited:

• ABA Formal Opinion 200: a lawyer may accept employment though the case may be heard by a relative; the duty rests on the judge

See also

• WI Ethics Op. E-69-1: Municipal Justice of the Peace Conflicts
• WI Ethics Op. E-70-1: Testimonial Dinners for Sitting Judges

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-69-2.pdf