When a lawyer leaves an office-sharing practice to become an assistant city attorney, can he appear before a relative who is a municipal judge, prosecute his old firm's former clients, or face his relatives as defense counsel?
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This page answers the general question as of 1988. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-88-2 addressed Lawyer X, who shared office space, letterhead, and secretarial staff (but not income) with his uncle Y and Y's son-in-law Z, with whom he consulted and exchanged referrals and socialized weekly. Z is a part-time municipal judge for an adjacent municipality and often substitutes as municipal judge for city A. X planned to leave private practice to become assistant city attorney for city A, primarily handling ordinance violations, while still receiving some winding-down income processed through his former firm. The opinion answered whether X may appear before Z while Z sits as municipal judge for city A, may prosecute former clients of his former firm (those he personally represented in unrelated matters, and those with whom he had no contact), and may prosecute when Y or Z is defense counsel.
The committee answered the first question in the negative, concluding that SCR 60.03 would require Z to recuse when X appeared as counsel, and that SCR 20:8.4(d) and (e) would render X's appearance before Z at best questionable and at worst prohibited. On prosecuting former clients X personally represented in unrelated matters, the committee said X must decide case-by-case under SCR 20:1.9(b), depending on whether X acquired information in the prior representation that is not generally known and could be used to the former client's disadvantage in the prosecution. On prosecuting former clients with whom X had no contact, the committee answered yes, citing SCR 20:1.11(c)(1). On prosecuting when Y or Z is defense counsel, the committee answered "yes, but," explaining that SCR 20:1.8 did not prohibit the representation or require client consent, while SCR 20:8.4(d) and any applicable code for governmental employees could render it inadvisable to the extent the public might perceive advantages accruing to Y and Z when appearing against their relative; given the close business and social relationship, the committee said X should consult his superiors and obtain their express consent under SCR 20:1.7(b). The committee expressed no opinion on the office-sharing arrangement itself, but flagged SCR 20:1.6(a) and 20:7.5(d) for office-sharing lawyers.
Currency note
This opinion was issued in 1988, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). The former-client and government-lawyer conflict rules SCR 20:1.9 and 20:1.11, the related-persons provision then in SCR 20:1.8, and the misconduct rule SCR 20:8.4 were later revised. 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 new assistant city attorney appear before a relative who is the municipal judge?
A: Per the opinion, no. The committee concluded SCR 60.03 would require the judge to recuse and SCR 20:8.4(d) and (e) make the appearance at best questionable.
Q: Can a former private lawyer now prosecute his old firm's former clients?
A: It depends. Former clients he never dealt with may be prosecuted under SCR 20:1.11(c)(1); for those he personally represented in unrelated matters, he must analyze case-by-case under SCR 20:1.9(b) whether he holds usable confidential information.
Q: Can he prosecute cases where his relatives are defense counsel?
A: The committee said the rules do not prohibit it, but SCR 20:8.4(d) and public-perception concerns make it inadvisable unless he consults his superiors and obtains their express consent under SCR 20:1.7(b).
Background and rules framework
The opinion interpreted SCR 20:1.9 / Model Rule 1.9 (former clients) and SCR 20:1.11 / Model Rule 1.11 (government officers and employees) together with the related-persons provision then in SCR 20:1.8 / Model Rule 1.8, the concurrent-conflict rule SCR 20:1.7 / Model Rule 1.7, and the misconduct rule SCR 20:8.4 / Model Rule 8.4, with reference to SCR 60.03 of the judicial code and state public-official conduct statutes.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:1.9, 20:1.11 / Model Rules 1.9, 1.11 (former clients; government lawyers)
- Wis. SCR 20:1.7, 20:1.8 / Model Rules 1.7, 1.8 (conflicts; related persons)
- Wis. SCR 20:8.4(d), (e) / Model Rule 8.4; SCR 60.03 (judicial recusal)
Statutes:
- Wis. Stat. sections 19.45, 19.46 (1985-86) (standards of conduct for public officials)
Other opinions cited:
- Wisconsin Formal Ops. E-85-8, E-85-9, E-85-2
See also
- WI Ethics Op. E-89-7: Lawyer on City Council
- WI Ethics Op. EF-11-02: Part-Time Prosecutor Conflicts
- WI Ethics Op. E-89-4: Suing a Former Joint 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-88-2.pdf
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