Can a lawyer who represented a mother and stepfather at a child-placement hearing later defend the stepfather against criminal charges arising from the same facts?

Plain-English summary

Opinion E-83-21 involved an attorney who had represented a wife and her husband (the child's stepfather, with no custodial rights) in a proceeding over whether the wife's minor daughter needed protective custody or foster placement. Both the mother and stepfather agreed foster placement was in the child's best interest. A charge arose that the stepfather had sexually abused the child; he denied it but pleaded no contest at final disposition. The question was the propriety of the attorney defending the stepfather if criminal charges were brought, given that no charges would be brought against the mother.

The committee concluded it did not see any conflict of interest prohibiting the attorney from representing the stepfather against criminal charges related to the matters revealed at the placement proceeding. It expressly assumed the proceeding was brought under Chapter 48, that it resulted from a petition signed by the child, that the proceeding was closed, and that any information revealed there would be discoverable in a subsequent criminal action. The committee then reminded the attorney that the Code prohibits using information acquired in the course of representing a client to that client's disadvantage (SCR 20.21(5), 20.22(1)(b)). Accordingly, if the mother were called as an adverse witness in any criminal action against the stepfather, the attorney would be prohibited from using past confidences to impeach her.

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. Conflicts with current and former clients and the use of client information are now governed by SCR 20:1.7, 20:1.9, and 20:1.6 / Model Rules 1.7, 1.9, and 1.6. 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 Treat this page as historical context, not current guidance.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 jointly represented a couple at a placement hearing later defend one of them criminally?

A: The committee concluded yes on these facts, where the placement-hearing information would be discoverable in the criminal action, so it saw no prohibiting conflict.

Q: What limit did the committee place on the criminal defense?

A: The committee said the lawyer may not use information acquired in representing the mother to her disadvantage, including impeaching her with past confidences if she testifies adversely.

Background and rules framework

The opinion interpreted the former Code's bar on using a client's information to the client's disadvantage (SCR 20.21(5), 20.22(1)(b)). Conflicts with current and former clients and confidentiality are now governed by SCR 20:1.7, 20:1.9, and 20:1.6 / Model Rules 1.7, 1.9, and 1.6.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.21(5), 20.22(1)(b) / Model Rules 1.6, 1.9 (use of client information; former clients) (former Code provisions)

Statutes:

• Wis. Stat. ch. 48 (children's code); secs. 48.13, 48.25, 48.299, 48.35

See also

• WI Ethics Op. E-85-8: Representation Adverse to a Former Client
• WI Ethics Op. E-85-10: Confidences and Secrets of a Client

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-83-21.pdf