Can a part-time city attorney, or another lawyer in the same firm, defend criminal cases in which city police officers may be witnesses?

Plain-English summary

Opinion E-90-5 asked whether a part-time city attorney, or a member of the city attorney's law firm, may represent defendants in state prosecutions in which city law enforcement personnel are potential witnesses. The committee concluded that such representation should not be accepted unless the lawyer or law firm can fully comply with SCR 20:1.7(b). Compliance would require obtaining the informed written consents of the appropriate city officials and the defense client.

The committee identified the competing concerns on each side of the consent requirement. The defense client could reasonably question the lawyer's loyalty when the lawyer has a close working relationship with the testifying city law enforcement officer, and the city may be concerned about its city attorney attacking the credibility of its own officers. The committee referred generally to its earlier Formal Opinion E-86-14 (1986). Because it concluded that the proposed representation is not absolutely prohibited by the Rules, the committee modified its prior Formal Opinions E-76-12 and E-81-3 to that extent.

Currency note

This opinion was issued in 1990, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). 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 Treat this page as historical context, not current guidance.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 part-time city attorney defend a criminal case where city police will testify?

A: Only with consent. The committee concluded the representation should not be accepted unless the lawyer can fully comply with SCR 20:1.7(b), obtaining the informed written consents of the appropriate city officials and the defense client.

Q: Why are the city officials' consents required, not just the client's?

A: Because both sides have an interest. The committee noted the defense client could question the lawyer's loyalty given the lawyer's relationship with the testifying officer, and the city could be concerned about its attorney attacking its officers' credibility, so both the city officials and the defense client must consent.

Q: Did this change earlier Wisconsin opinions?

A: Yes. The committee concluded the representation is not absolutely prohibited and modified its prior Formal Opinions E-76-12 and E-81-3 to that extent.

Background and rules framework

The opinion interpreted SCR 20:1.7 / Model Rule 1.7 (conflicts of interest), in particular SCR 20:1.7(b) on representation that may be materially limited by the lawyer's responsibilities to a third party, applied to a part-time city attorney's relationship with city law enforcement witnesses. It built on and modified prior Formal Opinions E-76-12 and E-81-3 and referred to E-86-14.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.7 / Model Rule 1.7 (conflicts of interest)

Other opinions cited:

• Wisconsin Formal Op. E-86-14 (1986)
• Wisconsin Formal Ops. E-76-12 and E-81-3 (modified)

See also

• WI Ethics Op. E-90-6: Public Defender Conflicts Office
• WI Ethics Op. E-92-5: Corporation Counsel in Support Cases
• WI Ethics Op. E-91-6: Government Lawyer Contact Rule

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-90-5.pdf