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?

Plain-English summary

Opinion E-86-13 considered a district attorney's office about to hire a part-time non-lawyer, where the county board was also considering hiring the same person to fill part-time duties in the register in probate's office. The register in probate is appointed and retained at the pleasure of the circuit judge, the office answers phone calls for the judge while the judge and reporter are on the bench, and the judge indicated the part-time employee might sometimes be used for various unspecified tasks. The question was whether the district attorney's office may ethically employ someone part-time under these circumstances.

The committee answered that no per se prohibition exists against a public or private law office employing part-time non-lawyers who have other law-related employment, noting that both the former Code (SCR chapter 20) and the ABA Model Rules expressly acknowledge the roles of non-lawyer employees, whether full or part time, citing SCR 20.21(2) and (5), SCR 20.22(3), and Model Rule 5.3. It concluded that, assuming the judge and district attorney exercise reasonable care in instructing and supervising the shared employee regarding strict observance of the ethical rules on confidentiality of communications and documents of the respective offices, the proposed employment relationship would be permissible. The committee cited a Tennessee formal ethics opinion (85-F-99) as general support.

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 rule on supervising nonlawyer assistants is now SCR 20:5.3 / Model Rule 5.3, and confidentiality is SCR 20:1.6 / Model Rule 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 Treat this page as historical context, not current guidance.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 non-lawyer work part time for a DA's office and a court office at the same time?

A: The committee concluded there is no per se prohibition against a law office employing a part-time non-lawyer who has other law-related employment.

Q: What condition did the committee attach?

A: Per the opinion, the arrangement is permissible if the judge and district attorney exercise reasonable care to instruct and supervise the shared employee in strictly observing each office's confidentiality of communications and documents.

Q: What rule governs supervising such a shared non-lawyer?

A: The committee cited the former Code's provisions on selection and supervision of non-lawyers (SCR 20.21(2), (5), and 20.22(3)) and ABA Model Rule 5.3.

Background and rules framework

The opinion interpreted the former Code's provisions on the selection, training, and supervision of non-lawyer employees and protection of confidences (SCR 20.21(2), (5), and 20.22(3)), the area now governed by SCR 20:5.3 / Model Rule 5.3 and the confidentiality rule SCR 20:1.6 / Model Rule 1.6, alongside ABA Model Rule 5.3.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.21(2), (5), 20.22(3) / Model Rule 5.3 (selection and supervision of nonlawyer employees)
• ABA Model Rule 5.3 (responsibilities regarding nonlawyer assistants)
• Model Rule 1.6 (confidentiality)

Other opinions cited:

• Tennessee Formal Ethics Op. 85-F-99 (Sept. 12, 1985)

See also

• WI Ethics Op. E-86-19: Court Reporter as a Full-Time Firm Employee
• WI Ethics Op. E-88-5: Client Trust Funds and Property

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-86-13.pdf