State Bar of Wisconsin Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the State Bar of Wisconsin, with full citations and source links on every page.
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Can a lawyer use a client's contingent-fee contract or attorney's lien as collateral for the lawyer's own personal loan?
The opinion concluded that under no circumstances may a lawyer use a contingent-fee contract with a client as security for a personal loan to the lawyer. Although SCR 20:1.8(j)(2) permits a reasonable…
Can a lawyer help a company market and prepare living trust plans sold to the public by nonlawyer salespeople?
The opinion concluded that a lawyer who participates in a company's marketing of living trust products faces serious problems. Drawing on its earlier Opinion E-90-7, the committee warned of nonwaivabl…
Can one lawyer represent both an injured plaintiff and the plaintiff's subrogated health insurer in the same personal injury claim?
The opinion concluded that joint representation may be possible, but only with care, because there are clear potential conflicts. The plaintiff and the subrogated carrier share the goal of recovering …
Can a government lawyer contact a represented party without counsel's consent based on a Justice Department directive (the Thornburgh Memorandum)?
The opinion concluded that the answer to both questions is no. A Wisconsin-licensed government lawyer may not communicate about the subject of a representation with a party the lawyer knows to be repr…
Can a lawyer informally interview the opposing party's expert witnesses or treating physicians outside the presence of opposing counsel?
The opinion reaffirmed, with caveats, the committee's earlier Formal Opinion E-83-13 on contacting an opposing party's expert witnesses, but modified it to reflect Klieger v. Alby, which held that Wis…
If a public defender supervisor assigns a caseload above recognized standards and a staff lawyer declines new cases, can the supervisor discipline that lawyer?
The opinion reaffirmed earlier Formal Opinion E-84-11 and concluded that the committee cannot resolve the employment-relations question, but that exceeding recognized maximum caseload standards, or im…
Can a Wisconsin lawyer work with a company that sells living-trust and estate-planning products to review or draft documents for its customers?
The opinion concluded that whether the organization is engaged in the unauthorized practice of law is a threshold issue the committee could not decide, but if it is, a lawyer may not assist it under S…
Can a public defender office set up a separate conflicts unit so its lawyers can represent co-defendants whose interests conflict, the way a separate firm could?
The opinion concluded that because the State Public Defender Office is a single 'firm,' the Rules prohibit one trial-division lawyer and one conflicts-office lawyer from representing co-defendants wit…
Can a part-time city attorney, or another lawyer in the same firm, defend criminal cases in which city police officers may be witnesses?
The opinion concluded that such representation should not be accepted unless the lawyer or firm can fully comply with SCR 20:1.7(b), which would require the informed written consents of the appropriat…
Can a lawyer charge interest, such as 1% per month, on a client's overdue fee and cost balances?
The opinion (revised April 17, 2020) concludes that a lawyer may charge interest on delinquent fee and cost balances if the interest is reasonable under SCR 20:1.5(a) and the client was given advance …
When a client pays a cash fee over $10,000, must a lawyer disclose the client's identity to the IRS on Form 8300?
The opinion concluded that a lawyer may not disclose a client's identity or fee information without the client's informed consent (SCR 20:1.6(a)), and that before accepting a cash fee over $10,000 the…
Can a lawyer advertise holding a public office, or advertise being licensed in another profession such as medicine or accounting?
The opinion concluded that a lawyer may advertise holding a public office or position, subject to SCR 20:7.5(c) (a public officeholder's name may not be used in a firm name while the lawyer is not act…
Can lawyers who only share office space use the same letterhead or a joint name to hold themselves out to the public as a firm?
The opinion concluded that lawyers or firms who associate only to share office space, equipment, library, personnel, or other resources are prohibited from sharing the same letterhead and may not impl…
If a lawyer is genuinely unsure whether the confidentiality rule requires revealing a client's confidences to prevent the client from causing substantial financial or property harm to someone else, will the lawyer be disciplined either way?
The opinion concluded that SCR 20:1.6(b) requires disclosure only when the client's act is criminal or fraudulent and is reasonably believed likely to cause substantial financial or property injury to…
What ethics rules constrain a company's in-house counsel who is asked to let the employer bill other entities for the lawyer's work, do personal legal work for the owner or the owner's family, or represent affiliated companies?
The opinion concluded that full-time house counsel may not take part in any arrangement under which the employer charges other entities for the lawyer's legal services, because a for-profit business m…
If a lawyer also serves on a city council, can the lawyer (or the lawyer's firm) represent private clients before that council or the city's boards and commissions?
The opinion concluded that under SCR 20:1.11 a lawyer-councilmember may not represent a private client in a matter the lawyer participated in personally and substantially as a public officer unless th…
Can a lawyer pay a community greeting service like Welcome Wagon to advertise the lawyer's practice to new residents?
The opinion concluded that lawyers may use Welcome Wagon services to advertise their practices, subject to compliance with the advertising rules SCR 20:7.1 through 20:7.5, and provided the service onl…
A law firm represented both spouses on business and property matters for years. Can the firm now represent the husband in a divorce against the wife?
The opinion concluded that although the firm's prior business and property work for the couple was not the same as the divorce, it was substantially related under SCR 20:1.9 because the firm would be …
If one spouse is the district attorney and the other practices criminal defense at a local firm, can their offices be on opposite sides of the same cases?
The opinion concluded that under SCR 20:1.8(i) there is no imputed disqualification based solely on a spousal relationship, so the district attorney may prosecute defendants represented by the spouse'…
Can a lawyer handle the appeal of a divorce judgment on a contingent fee?
The opinion concluded that a lawyer may not accept a divorce appeal on a contingent fee where the fee is contingent on securing the divorce or on the amount of alimony, support, or property settlement…
Can a lawyer pay a retired or unemployed fact witness for the time spent preparing, traveling, and testifying, at a rate close to the wage the witness would otherwise earn?
The opinion concluded that, reaffirming Formal Opinion E-88-9, a lawyer may pay reasonable amounts to compensate a witness for lost time, travel, and lawful witness fees. Because an unemployed or reti…
Can a city attorney who normally advises a city council or committee also act as the city's advocate before that same body on a matter where it has separate counsel?
The opinion concluded that yes, a city attorney who advises most city committee and council business may act as the city's advocate before a committee or council on a matter for which that body has in…
Can a lawyer in a case contact a guardian ad litem, the GAL's ward, or a represented person directly, without going through opposing counsel or the GAL?
The opinion concluded that a lawyer for a party or witness may communicate with a guardian ad litem without other counsel's consent, because no rule prohibits it and GALs are not officials under SCR 2…
Is it a conflict of interest for one lawyer to serve at the same time as a party's attorney of record and as the guardian ad litem?
The opinion concluded that there is no inherent conflict in a lawyer simultaneously serving as attorney of record and as guardian ad litem, a practice the Wisconsin Supreme Court sanctions and monitor…
Does a lawyer have to report opposing counsel's serious misconduct to the disciplinary authority if reporting it would reveal the lawyer's own client's information?
The opinion concluded that no, a lawyer is not required to report opposing counsel's misconduct when doing so would prejudice the lawyer's client, because the reporting duty under SCR 20:8.3(a) does n…
Can a lawyer reveal a deceased client's confidential information to prevent harm to someone else, such as to keep an innocent person out of prison?
The opinion concluded that a lawyer's duty to preserve a client's secrets and confidences does not end with the client's death but continues indefinitely unless disclosure is consented to, ordered by …
Can a lawyer represent both the majority and minority investors when forming a partnership or corporation, and keep representing one of them if the joint representation has to end?
The opinion concluded that a lawyer may generally represent both majority and minority investors in forming a business if the lawyer complies with the intermediary rule SCR 20:2.2 and the conflict rul…
Can a lawyer accept clients who come to the lawyer after reading the lawyer's book or attending an educational seminar the lawyer gave?
The opinion concluded that nothing in SCR 20:7.2 or 20:7.3 prohibited a lawyer, subject to SCR 20:7.1, from accepting clients who contacted the lawyer because of a book, audiotape, or videotape, and t…
How much can a lawyer pay a fact (nonexpert) witness for testifying?
The opinion concluded that SCR 20:3.4(b) prohibits offering a witness an inducement that is prohibited by law, and that while it is permissible to pay reasonable amounts for a witness's lost wages, tr…
Can a lawyer who gets clients through a bar association's lawyer referral service pay the service a percentage of the fees earned from those clients?
The opinion concluded that under SCR 20:7.2(b) lawyers registered with a bar association's lawyer referral service may contribute a percentage of collected fees toward operating the service, but only …
Can a lawyer (or the lawyer's firm) handle divorce cases when the lawyer's spouse is the county's only social worker doing the custody and abuse studies in those cases?
The opinion concluded that the Rules of Professional Conduct do not prohibit a lawyer from representing a party or guardian ad litem in a divorce where the lawyer's spouse is the sole county social wo…
If a lawyer will probably have to testify from personal knowledge for the client, must the lawyer and the firm withdraw from the case?
The opinion concluded that, unlike the pre-1988 rules, SCR 20:3.7 does not automatically disqualify a lawyer's firm when the lawyer testifies for the client on a contested issue. SCR 20:3.7(b) lets ot…
Under the trust-account rule, can a lawyer count service costs when deciding whether to open a separate account for briefly held funds, what client 'property' must be safeguarded, and who must be notified?
The opinion concluded, on four questions under SCR 20:1.15, that a lawyer may consider the cost of the lawyer's and staff's services in deciding whether briefly held funds would yield the client a pos…
In a private adoption, can a lawyer advertise for birth mothers, broker the match between birth and adoptive parents, and represent only the adoptive parents?
The opinion concluded that whether a lawyer may solicit or advertise for birth mothers the lawyer will not represent first depends on whether that conduct is legal under Wisconsin law, and if legal, t…
Can a lawyer running for judge keep their membership and offices in a political party during the campaign?
The opinion concluded no. The committee read SCR 20:8.2(b), which requires lawyers who are candidates for judicial office to comply with the applicable provisions of the code of judicial conduct, toge…
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?
The opinion concluded that the new assistant city attorney may not appear before his office-mate relative sitting as municipal judge, because SCR 60.03 would require the judge to recuse and SCR 20:8.4…
A lawyer is defending a small corporation in two lawsuits and is also representing its sole shareholder in his divorce. Can the lawyer keep doing both?
The opinion concluded that the lawyer may continue both representations if the divorcing spouse (the petitioner) is not individually a client in the corporate lawsuits, because then there is no direct…
When must a lawyer break client confidentiality to report that a client is abusing, or failing to protect, the client's child?
The opinion concluded that where the client is the abuser and the lawyer reasonably believes the abuse will continue despite efforts to get the client to stop and seek counseling, the lawyer must repo…
A lawyer for a seller learns just before closing that hazardous waste is buried on the property and the buyer has not been told. Must the lawyer disclose, and can quitting avoid the duty?
The opinion concluded that whether the lawyer must disclose turns on whether nondisclosure would be criminal or fraudulent, a legal question outside the committee's jurisdiction; but if it would be, S…
Can a Wisconsin lawyer who works full-time for an accounting firm list their J.D. and LL.M. degrees on the accounting firm's business card?
The opinion concluded yes, a Wisconsin-licensed lawyer employed full-time by an accounting firm may indicate J.D. and LL.M. degrees on a business card, withdrawing the committee's earlier Formal Opini…
When a solo practitioner dies, what duties does an associate lawyer who worked as the solo's employee owe to the firm's pending clients?
The opinion concluded that an associate of a deceased solo practitioner must first take action necessary to protect clients' rights, files, and property, then promptly arrange to have authority to win…
May a Wisconsin district attorney mail motions and notices directly to a represented criminal defendant, or contact a child support payor who was once but is not now represented?
The opinion concluded that, absent consent of defense counsel or authorization by law, a district attorney may not communicate with a represented criminal defendant about the subject of the representa…
May a Wisconsin lawyer accept referrals from a for-profit lawyer referral service to which the lawyer pays a fee or gives something of value?
The opinion concluded that under the former Code a lawyer could not accept referrals from a profit-making referral service to which the lawyer paid any fee or gave anything of value for the referral. …
Can a lawyer defend another lawyer in a malpractice case when the two firms regularly appear against each other as opposing counsel in unrelated matters?
The opinion concluded that counsel offered a retainer by a lawyer-malpractice defendant's insurer should decline the representation, absent the defendant firm's informed consent, where counsel has or …
Can a former in-house lawyer later represent clients against the former corporate employer in matters that were not pending while the lawyer was employed there?
The opinion concluded there is no per se bar to a former house counsel representing clients against a former corporate employer in matters that were not pending before or at the time employment ended.…
May a county lawyer let a county-employed physician negotiate a commitment agreement directly with a represented respondent without notifying the respondent's lawyer?
The opinion concluded that, absent prior notification of the respondent's counsel and counsel's consent, negotiations with a represented respondent conducted by the district attorney or other public e…
Can a lawyer who served as a child's guardian ad litem in a protective services case later prosecute a termination of parental rights case involving the same child?
The opinion concluded that an attorney who once acted as guardian ad litem for a child in a protective services proceeding may not later act as prosecutor (or as defense counsel) in a termination of p…
Can a lawyer propose or agree to a settlement that requires the lawyer to personally indemnify and hold the other side harmless against unknown lien claims on the settlement?
The opinion concluded that under both the former Code and the new Rules, including such indemnification and hold-harmless provisions in settlement agreements is improper, so lawyers may not propose, d…
Can a lawyer pursue unreimbursed litigation costs directly from a worker's compensation client outside the compensation proceeding itself?
The opinion concluded that a lawyer may seek to recover unreimbursed costs directly from a worker's compensation claimant-client outside the proceeding, assuming the costs were reasonable and necessar…
Can a city attorney's office both prosecute the city's case and advise the city board or commission that decides that same matter?
The opinion concluded that a city attorney's office may not serve both as an advocate of the city and as an advisor to a city appellate board or commission in proceedings involving the same matter. Bu…
Does a lawyer have to put a retainer or an advance on fees and costs into the client trust account?
The opinion concluded that a true retainer, paid to secure a lawyer's general availability, should not be deposited in the client trust account when there is a clear agreement (preferably written) tha…
Does a prosecutor have an ethical duty to disclose to the defense a witness who could help the defendant, and may a prosecutor tell a witness not to talk to the defense?
The opinion concluded that a prosecutor has no duty to actively encourage a witness to talk with the defense but has a duty to timely disclose the existence and whereabouts of a known potential witnes…
After a lawyer's spouse becomes a full-time family court commissioner, can the lawyer continue a family law practice in the same county?
The opinion concluded that the remaining sole practitioner may not represent clients in matters that would prospectively involve action by the commissioner spouse in his or her official capacity, but …
Can a lawyer who is also a licensed real estate broker take a referral commission for sending a client to a realtor, and charge both legal and brokerage fees in the same matter?
The opinion concluded that a lawyer who is also a real estate broker may accept a referral fee from a realtor for referring a current client only with the client's express consent at the time of the r…
Can a law firm employ a court reporter full time, use that reporter in its own litigation, and contract the reporter's services out to other lawyers?
The opinion concluded that no ethics rule per se precludes a law firm from employing a court reporter full time for use in the firm's own litigation or from contracting the reporter's services out to …
Must a prosecutor who is sued by a criminal defendant step aside and ask for a special prosecutor to avoid a vindictiveness claim on appeal?
The opinion concluded that a prosecutor sued by a defendant in a related federal lawsuit is not required to seek or recommend appointment of a special prosecutor to head off a possible appeal based on…
Can a lawyer's firm sue an insurer or fund on whose board of directors the lawyer sits?
The opinion concluded that a lawyer's firm, and any partner, shareholder, or associate, may not represent interests adverse to an insurance company and insurance fund for which the lawyer serves as a …
Can a small city attorney's office prosecute a city employee who regularly investigates and testifies for the city in other ordinance cases?
The opinion concluded that a small city attorney's office should not prosecute a city employee for an ordinance violation where the office has a close and continuing working relationship with that emp…
Can a district attorney's office hire a part-time non-lawyer who also works part time in the court's register in probate office for the judge?
The opinion concluded there is no per se prohibition against a public or private law office employing a part-time non-lawyer who also holds other law-related employment. The committee concluded the sh…
Can a lawyer who is a state legislator or county board member represent private clients in cases where employees of that same governmental unit testify?
The opinion concluded there is no per se prohibition against a lawyer-legislator or lawyer-county board member representing persons in Children's Code or Public Assistance proceedings in which employe…
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Legal ethics opinions from the State Bar of Wisconsin interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.