When may a Wisconsin law firm use temporary or contract attorneys, and what conflict and confidentiality rules apply?
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This page answers the general question as of 1996. 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-96-4 answered when a Wisconsin law firm may use temporary or contract attorneys. Rather than write its own analysis, the Professional Ethics Committee adopted ABA Standing Committee Formal Opinion 88-356 (Dec. 16, 1988), agreeing with its reasoning and conclusions while cautioning that the ABA opinion references the Model Code and Model Rules, which may differ in some respects from Wisconsin's rules. The adopted opinion frames the issue around four areas: conflicts of interest, confidentiality, disclosure to the client (including fee division), and arrangements with lawyer placement agencies.
On conflicts, a temporary lawyer who works on a client's matter "represents" that client for purposes of the conflict rules, so the lawyer cannot work simultaneously on directly adverse matters for clients of different firms, and cannot later work against a former client in the same or a substantially related matter, absent consent. The hardest questions involve imputed disqualification: whether a temporary lawyer is "associated" with a firm is a functional analysis of the actual relationship, not a label, turning on whether the lawyer had access to information protected by the confidentiality and former-client rules. A firm that uses temporary lawyers across many matters must take care that confidential information is not spread firm-wide in a way that would broadly impute conflicts.
On confidentiality, the firm and the temporary lawyer must protect information relating to each client's representation. On disclosure, the client should be told of the temporary-lawyer arrangement in some circumstances, and any fee division between the firm and the temporary lawyer is constrained by the fee rules. On placement agencies, the adopted opinion concludes that an arrangement in which the agency's fee is a percentage of the temporary lawyer's compensation does not violate the rules as long as the lawyer's professional independence is maintained without agency interference, the total fee each client pays the firm is reasonable, and the arrangement otherwise follows the opinion's guidelines.
Currency note
This opinion was issued in 1996, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). The adopted ABA opinion also predates those revisions and references the Model Code. 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: May a Wisconsin firm use temporary or contract lawyers at all?
A: Yes. The committee adopted ABA Formal Op. 88-356, concluding that a firm may use temporary lawyers provided it manages conflicts, maintains confidentiality, and discloses the arrangement to clients in some circumstances.
Q: Is a temporary lawyer treated as part of the firm for conflict imputation?
A: It depends on the facts. The adopted opinion concludes that whether a temporary lawyer is "associated" with a firm is a functional inquiry into the actual relationship and the lawyer's access to protected client information, not a matter of titles.
Q: Can a firm pay a placement agency a percentage of the lawyer's compensation?
A: Yes, with conditions. The adopted opinion concludes that such an arrangement is permissible if the lawyer's professional independence is maintained without agency interference and the total fee each client pays the firm is reasonable.
Q: Does the client have to be told about the temporary lawyer?
A: In some circumstances. The adopted opinion concludes that the arrangement between the firm and the temporary lawyer, including any fee division, must be disclosed to the client where the rules require.
Background and rules framework
By adopting ABA Formal Op. 88-356, the opinion applies the conflict rules SCR 20:1.7 / Model Rule 1.7 (current clients), SCR 20:1.9 / Model Rule 1.9 (former clients), and SCR 20:1.10 / Model Rule 1.10 (imputed disqualification), along with SCR 20:1.6 / Model Rule 1.6 (confidentiality) and the fee-division rule SCR 20:1.5(e) / Model Rule 1.5. The adopted opinion conducts a functional analysis of when a temporary lawyer is "associated" with a firm for imputation purposes.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:1.7 / Model Rule 1.7 (current-client conflicts)
- Wis. SCR 20:1.9 / Model Rule 1.9 (former-client conflicts)
- Wis. SCR 20:1.10 / Model Rule 1.10 (imputed disqualification)
- Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality)
- Wis. SCR 20:1.5(e) / Model Rule 1.5 (division of fees)
Other opinions cited:
- ABA Formal Op. 88-356 (Dec. 16, 1988) (adopted by this opinion)
- Association of the Bar of the City of New York Op. 1988-3 (placement-agency fee splits); Connecticut Bar Informal Op. 88-15 (1988)
See also
- DC Ethics Op. 255: Use of a Former Firm Lawyer on a Contract Basis
- NY State Bar Op. 794: Law School Clinic Project Conflicts and Imputation
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-96-4.pdf
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