May a county lawyer let a county-employed physician negotiate a commitment agreement directly with a represented respondent without notifying the respondent's lawyer?

Plain-English summary

Opinion E-87-2 arose from involuntary civil commitment proceedings under Wis. Stat. chapter 51. A respondent detained in a public in-patient facility was appointed or retained counsel for the commitment proceeding. The facility assigned a staff physician, a county employee, to examine the respondent for purposes of testifying at the probable cause hearing and for treatment, and the position taken by the county's attorney (district attorney or corporation counsel) in the proceedings was, in virtually every case, identical to the views of the staff physicians. The physician then negotiated an agreement directly with the represented respondent for out-patient commitment in return for a medical recommendation for release, knowing the respondent was represented but without notifying counsel, and advised the respondent to waive a jury trial and submit to involuntary out-patient commitment.

The committee identified the governing rules: SCR 20.04(2) prohibits circumventing a disciplinary rule through the actions of another person, and SCR 20.38(a) prohibits communicating, or causing another to communicate, on the subject of the representation with a represented party. It concluded that, absent prior notification of the respondent's counsel and counsel's consent, negotiations with the respondent conducted by the district attorney or other public employees on the lawyer's behalf would be improper. The committee made no finding on the facts presented as to whether a breach of SCR 20.38(1) had actually occurred, citing a State Bar bylaw that precludes the committee from commenting on the past or present conduct of an identifiable member.

As to the physician's own communications with the respondent, the committee stated it is not authorized to issue opinions on what is or is not the practice of law, but reminded all concerned of SCR 10.03(4), SCR 20.18(1), and Wis. Stat. section 757.30.

Currency note

This opinion was issued in 1987, 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 no-contact rule is now SCR 20:4.2 / Model Rule 4.2, the anti-circumvention provision is now reflected in Model Rule 8.4(a), and the cited statutes may have been amended or renumbered. 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 government lawyer use a non-lawyer expert to negotiate with a represented party?

A: The committee concluded that, absent the respondent's counsel's prior notification and consent, such negotiations conducted by the district attorney or other public employees on the lawyer's behalf would be improper, citing SCR 20.04(2) and SCR 20.38.

Q: Why does the no-contact rule reach conduct by someone other than the lawyer?

A: The opinion stated SCR 20.04(2) prohibits circumventing a disciplinary rule through another person, and SCR 20.38(a) prohibits a lawyer causing another to communicate with a represented party on the subject of the representation.

Q: Did the committee decide that a violation occurred here?

A: No; the committee declined to find on the presented facts whether a breach occurred, citing a State Bar bylaw barring it from commenting on an identifiable member's conduct, and said it could not opine on whether the physician's conduct was the practice of law.

Background and rules framework

The opinion interpreted the former Code's no-contact rule (SCR 20.38 / Model Rule 4.2) together with the anti-circumvention provision (SCR 20.04(2), now reflected in Model Rule 8.4(a)) governing a lawyer who causes another person to make a prohibited communication, an area also touched by a lawyer's responsibility for nonlawyer conduct under Model Rule 5.3.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.38 / Model Rule 4.2 (communication with a represented person)
• Wis. SCR 20.04(2) / Model Rule 8.4(a) (circumventing a rule through the acts of another)
• Model Rule 5.3 (responsibilities regarding nonlawyer conduct)

Statutes:

• Wis. Stat. chapter 51 (involuntary commitment)
• Wis. Stat. section 757.30 (practicing law without a license)

Cases:

• Disciplinary Proceedings Against Zapf, 125 Wis. 2d 123, 375 N.W.2d 654 (1985)
• Disciplinary Proceedings Against Heilprin, 123 Wis. 2d 394, 367 N.W.2d 217 (1985)

See also

• WI Ethics Op. E-87-8: District Attorney Contact With Represented Parties
• WI Ethics Op. E-91-6: Government Lawyer Contact With Represented Parties
• WI Ethics Op. E-96-3: Prosecutor Contact With Represented Persons Via Agency Staff

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-87-2.pdf