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WISBAR February 12, 2020

When a client or third party files a grievance against a Wisconsin lawyer, must the lawyer withdraw, and what can the lawyer disclose?

Short answer: The opinion concludes that the mere filing of a grievance does not by itself create a conflict requiring withdrawal or client consent, though it may support permissive withdrawal; but if the grievance raises credible misconduct allegations that pit the lawyer's self-defense against the client, the lawyer has a usually non-consentable conflict and must withdraw. The lawyer must cooperate with the Office of Lawyer Regulation and may respond using the self-defense exception, while protecting other client information.

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This page answers the general question as of 2020. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2020
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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Plain-English summary

Opinion EF-20-01 (February 12, 2020) addresses what a lawyer must do when a client or third party files a grievance against the lawyer with the Office of Lawyer Regulation (OLR) during an ongoing representation. On conflicts, the committee concludes there is no per se conflict: the mere filing of a grievance does not, by itself, create a conflict under SCR 20:1.7(a)(2) requiring withdrawal or client consent, agreeing with Oregon Opinion 2009-182 and similar authority. Most grievances close at intake without a misconduct finding, and many stem from a client's misunderstanding that the lawyer can address through communication. But where a grievance states credible misconduct allegations such that the lawyer would need to attack the client's credibility or otherwise damage the client's interest to defend, the lawyer has a conflict that requires withdrawal and that normally cannot be cured by client consent. The same framework applies to grievances filed by opposing counsel or other third parties, which only rarely create a conflict.

The committee also notes that even when withdrawal is not required, a grievance may furnish grounds for permissive withdrawal under SCR 20:1.16(b), for example where it is part of a pattern of hostile behavior making the representation unreasonably difficult, though the bare filing of a grievance is not itself such a ground.

On confidentiality, the committee explains that every Wisconsin lawyer must cooperate with the OLR under SCR 21.15(4), and that an intentional failure to cooperate is itself misconduct. Responding to the OLR does not breach confidentiality: SCR 20:1.6(c)(4)'s self-defense exception permits disclosure of information relating to the representation to the extent reasonably necessary to respond, and SCR 20:1.6(c)(5) covers compliance with other law. Because the OLR ordinarily shares a respondent's response with the grievant, the committee advises that where a response would reveal sensitive client information, the lawyer should consider asking the OLR to withhold or summarize it; the need to disclose does not excuse cooperation, and disclosed information does not lose its protected status. A lawyer is free to disclose the fact that a grievance was filed, but information relating to current or former clients (such as client identities) remains protected. Finally, the lawyer may keep representing and communicating with a client who filed a grievance, but may not pressure the client to withdraw the grievance or stop cooperating, and SCR 20:1.8(h)(3) bars agreements limiting a person's ability to file one.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. A Wisconsin lawyer who learns a client or third party has filed a grievance is not required to withdraw merely because of the filing, and may continue to represent and communicate with the client. The committee concludes the lawyer must withdraw where credible misconduct allegations would force the lawyer to act against the client's interest, must cooperate with the OLR (responding under SCR 20:1.6(c)(4) while seeking to protect sensitive client information), and may not induce the client to withdraw the grievance or stop cooperating. The committee suggests consulting a trusted colleague or counsel before responding.

Common questions

Q: Does a client filing a grievance force the lawyer to withdraw?

A: No, not by itself. The committee concludes the mere filing of a grievance does not create a conflict requiring withdrawal or client consent.

Q: When does a grievance require withdrawal?

A: When self-defense conflicts with the client. The committee concludes that credible misconduct allegations that would require the lawyer to attack the client's credibility or harm the client's interest create a usually non-consentable conflict requiring withdrawal.

Q: Can the lawyer respond to the OLR without breaching confidentiality?

A: Yes. The committee concludes SCR 20:1.6(c)(4) and (c)(5) permit a reasonable response, and that cooperation is itself required by SCR 21.15(4), with sensitive client information protected where possible.

Q: Can the lawyer keep talking to a client who filed a grievance?

A: Yes, but carefully. The committee concludes there is no bar to communicating, but the lawyer may not pressure the client to withdraw the grievance or stop cooperating, and SCR 20:1.8(h)(3) bars agreements limiting the ability to file one.

Q: Must the lawyer keep the grievance secret?

A: No, but client information stays protected. The committee concludes a lawyer may disclose that a grievance was filed, while information relating to current or former clients remains confidential.

Background and rules framework

The opinion interprets SCR 20:1.7 / Model Rule 1.7 (whether the lawyer's self-defense interest materially limits the representation), SCR 20:1.16 / Model Rule 1.16 (mandatory and permissive withdrawal), SCR 20:1.6 / Model Rule 1.6 (confidentiality, including the self-defense exception in 20:1.6(c)(4) and the other-law exception in (c)(5)), SCR 20:1.4 (continued communication), and SCR 20:1.8(h)(3) (no agreements limiting the right to file a grievance). It also applies the Wisconsin duty to cooperate with the OLR under SCR 21.15(4) and the confidentiality of grievances under SCR 22.40.

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:1.7 / Model Rule 1.7 (personal-interest conflicts)
  • Wis. SCR 20:1.6, 20:1.6(c)(4) / Model Rule 1.6 (confidentiality; self-defense exception)
  • Wis. SCR 20:1.16 / Model Rule 1.16 (mandatory and permissive withdrawal)
  • Wis. SCR 20:1.8(h)(3) / Model Rule 1.8 (no agreements limiting the right to file a grievance)
  • Wis. SCR 21.15(4), 22.40 (duty to cooperate with the OLR; confidentiality of grievances)

Cases:

  • Disciplinary Proceedings against Arrieh, 174 Wis. 2d 331, 496 N.W.2d 601 (1993), inducing a grievant to stop cooperating
  • Malede v. United States, 767 A.2d 267 (D.C. 2001), bare filing of a complaint did not create a disqualifying conflict

Other opinions cited:

  • ABA Formal Opinion 94-384: a lawyer ordinarily need not withdraw when opposing counsel files a complaint
  • Oregon Ethics Opinion 2009-182: no per se conflict from a client's grievance

See also

Source

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