After a lawyer's spouse becomes a full-time family court commissioner, can the lawyer continue a family law practice in the same county?

Plain-English summary

Opinion E-86-5 addressed a married couple who had practiced law as a partnership until one spouse became a full-time family court commissioner (FCC) in the county where the office sat; the partnership would dissolve and the remaining spouse would continue as a sole practitioner. The committee answered three questions about what the remaining spouse could handle.

First, the committee concluded the sole practitioner may not represent clients in matters that would prospectively involve any action by the FCC spouse in his or her official capacity, citing former SCR 20.48(6) and 20.49(3) and, for the commissioner's duties, SCR 60.03 and 60.19(3), along with ABA Informal Op. 1372.

Second, the committee concluded the practitioner may represent clients in matters that would prospectively involve a commissioner other than the spouse, or post-divorce or post-paternity matters heard or decided by another commissioner. It reasoned that the statutory limitation in section 767.16, Wis. Stats., would circumscribe practice in the county only if the partnership continued, and that it had previously found similar representation proper in Formal Opinions E-82-13 and E-84-20.

Third, for representation in post-trial proceedings where the FCC spouse had exercised some responsibility in the underlying proceedings, the committee found the answer less clear. Such representation is not per se prohibited by statute or the disciplinary rules, though it could raise questions in an opposing party's mind about the integrity of the legal system. Reminding the lawyer of the continuing duty to represent the client zealously and to exercise independent professional judgment, the committee concluded the lawyer may accept such representation.

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 conflict-of-interest framework is now found in SCR 20:1.7 / Model Rule 1.7, with a lawyer's relationship to an adjudicative officer addressed by Model Rule 1.12. 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 Treat this page as historical context, not current guidance.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 appear in cases that would go before a spouse who is a family court commissioner?

A: No. The committee concluded the lawyer may not represent clients in matters that would prospectively involve action by the spouse-commissioner in his or her official capacity.

Q: Can the lawyer still practice family law before other commissioners in the same county?

A: The committee concluded yes, including post-divorce and post-paternity matters heard or decided by a commissioner other than the spouse, because the statutory limit applied only if the law partnership continued.

Q: What about cases the spouse-commissioner earlier handled, now in post-trial proceedings?

A: The committee found this less clear but concluded such representation is not per se prohibited and may be accepted, reminding the lawyer of the duty to represent the client zealously and to exercise independent professional judgment.

Background and rules framework

The opinion interpreted the former Code's conflict provisions (SCR 20.48(6) and 20.49(3)) together with the statutory limits on family court commissioner practice (section 767.16, Wis. Stats.) and the commissioner's duties under SCR 60.03 and 60.19(3). The concerns map onto today's conflict-of-interest rule SCR 20:1.7 / Model Rule 1.7 and Model Rule 1.12, which governs a lawyer's involvement in matters connected to a judge or adjudicative officer.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.48(6), 20.49(3) / Model Rule 1.7 (conflicts of interest) (former Code provisions)
• Wis. SCR 60.03, 60.19(3) (family court commissioner duties)
• Model Rule 1.12 (lawyer's relationship to a judge or adjudicative officer)

Statutes:

• Wis. Stat. section 767.16 (former; family court commissioner practice limits)

Other opinions cited:

• ABA Standing Committee on Ethics and Professional Responsibility, Informal Op. 1372 (Sept. 13, 1976)
• Wisconsin Formal Op. E-82-13
• Wisconsin Formal Op. E-84-20

See also

• WI Ethics Op. E-09-04: Family Court Commissioner and GAL Conflicts
• WI Ethics Op. E-88-7: Family Law Practice With a Social Worker Spouse
• WI Ethics Op. E-86-13: Lay Employee Shared by the DA and Court Offices

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-86-5.pdf