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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How does a Wisconsin criminal defense lawyer handle a client whose competency to stand trial is in doubt?
The opinion concludes that in criminal cases constitutional and Wisconsin competency law largely supplants SCR 20:1.14: when there is reason to doubt the client's competence the lawyer must notify the…
When a lawyer leaves a Wisconsin law firm, what do the lawyer and the firm owe to the clients the lawyer was handling?
The opinion concludes that when a lawyer leaves a firm both the lawyer and the firm must protect affected clients, principally the client's right to choose counsel and to receive competent, diligent r…
Can a Wisconsin lawyer who will be a necessary witness also serve as the advocate at the same trial?
Generally no. The opinion concludes that under SCR 20:3.7 a lawyer who is likely to be a necessary witness may not act as advocate at the same trial unless an exception applies, and because the rule p…
How do conflict-of-interest and confidentiality rules apply to a Wisconsin guardian ad litem who represents a ward's best interests rather than the ward personally?
The opinion concludes that a guardian ad litem (who must be a lawyer in Wisconsin) has a client for disciplinary purposes, the 'best interests' of the ward, and analyzes conflicts under SCRs 20:1.7, 1…
Can a Wisconsin lawyer record a conversation without telling the other person, when the recording is legal under one-party-consent law?
It depends on who is recorded. The opinion concludes that recording clients, judges, or court personnel without their knowledge and consent violates the disciplinary rules, but recording opposing coun…
Can a Wisconsin lawyer reveal client information to respond to a negative online review or social-media criticism?
No. The opinion concludes that a lawyer may not reveal information relating to the representation in response to online criticism without the affected client's informed consent, and that the self-defe…
What conflicts arise when a Wisconsin criminal defense lawyer moves to a prosecutor's office, or a prosecutor moves to a defense firm?
The opinion concludes that a defense lawyer who interviews to become a prosecutor or who runs for district attorney has a personal conflict in every criminal case and may continue only with each clien…
What may a Wisconsin lawyer do when a client has become a fugitive, and must the lawyer disclose the client's location?
The opinion concludes that a fugitive client's location is protected by confidentiality and often privileged, so the lawyer neither must nor may disclose it absent client consent or a court order. The…
If a court, the prosecutor, or a clerk makes a mistake that benefits a criminal defense client, must the lawyer correct it?
The opinion concludes that a lawyer who learns of an error by the court, opposing counsel, or a third party that benefits the client, and which the lawyer had no role in causing, is not required to ac…
What ethical duties apply to a Wisconsin lawyer who works remotely or from outside the state?
The opinion concludes that working remotely does not change a lawyer's core duties of competence, diligence, communication, and confidentiality, but heightens the need for technological competence, re…
Can a Wisconsin lawyer threaten criminal prosecution or a disciplinary grievance to gain leverage in a civil matter?
The opinion concludes that no rule bars threatening criminal prosecution to gain an advantage in a related civil matter, so long as the lawyer has a good-faith belief that both the civil claim and the…
Can a Wisconsin lawyer cross-examine a current or former client who is an adverse witness in another case?
The opinion concludes that cross-examining a current client is always a conflict under SCR 20:1.7 that requires both clients' signed informed consent to continue, and cross-examining a former client i…
When a client or third party files a grievance against a Wisconsin lawyer, must the lawyer withdraw, and what can the lawyer disclose?
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…
When does a Wisconsin lawyer seeking a job with an opposing firm or party have a conflict of interest in the case they are handling?
The opinion concludes that a lawyer with an active, material role in a matter has a personal-interest conflict under SCR 20:1.7(a)(2) once the lawyer sends a targeted, specific expression of interest …
Can one lawyer represent both spouses in a divorce, even when they fully agree on the terms?
The opinion concludes that a lawyer may not represent both spouses in a divorce, even a friendly one, because divorce is litigation in which one spouse's claim is asserted against the other, a non-con…
Must a criminal defense lawyer correct a court that is unaware of the client's prior OWI convictions, when the error benefits the client and no one has asked the lawyer about it?
The opinion concludes that a defense lawyer has no affirmative duty to proactively correct a court's or prosecutor's mistaken understanding of the number of prior OWI convictions, because the lawyer n…
Does a lawyer who drafts a form contract for one client have a conflict if another client might later negotiate against it?
The opinion concludes that drafting a form contract for a client is not, by itself, a conflict merely because the form might later be used against another client of the firm; there is no direct advers…
Can in-house counsel for a non-law-firm company provide legal services to the company's customers?
The opinion concludes that an in-house lawyer who provides legal services to the customers of a non-law-firm employer, for the employer's financial benefit, assists the employer in the unauthorized pr…
Must a lawyer scrub metadata before sending electronic documents, and may a lawyer mine metadata in documents received from an opponent?
A sending lawyer must act competently to prevent disclosing significant metadata; a receiving lawyer is not barred from mining metadata, but must comply with SCR 20:4.4(b) or (c) if it reveals materia…
Can a lawyer contact someone who is represented by another lawyer in a different, unrelated matter?
Yes. SCR 20:4.2 only bars communication about the matter in which the person is represented, so a lawyer who represents no one in that matter may contact a represented witness, give a second opinion (…
Is the identity of a current or former client protected by the duty of confidentiality?
The opinion concludes that under SCR 20:1.6 the duty of confidentiality protects all information relating to the representation, whatever its source, including a client's identity, so a lawyer may not…
How long must a Wisconsin lawyer keep closed client files before destroying them?
The opinion concludes there is no fixed retention period in the rules, but if the former client has not requested the file the lawyer should keep it at least six years after the last act that could gi…
When representation ends, what must a Wisconsin lawyer give the client from the file, and can the lawyer hold it for unpaid fees?
The opinion concludes that the file is the client's property and SCR 20:1.16(d) requires the lawyer to surrender it on request when representation ends, including in a usable electronic format if that…
Can a lawyer who also owns a financial-planning business advertise her law practice there and offer legal services to that business's clients?
She may mention her law practice in the side business's marketing if it meets SCR 20:7.1 and 7.2, but SCR 20:7.3(a) bars her from offering legal services in person to that business's clients; she may …
Can a Wisconsin lawyer label an advance fee or an availability retainer 'nonrefundable'?
No. The revised opinion concludes that because both advanced fees and availability retainers must be earned and may have to be refunded under SCR 20:1.16(d), calling either one 'nonrefundable' is a mi…
Can a Wisconsin lawyer store and transmit client information using cloud computing services?
Yes. The opinion concludes that a lawyer may use cloud computing as long as the lawyer makes reasonable efforts, commensurate with the risks, to protect the confidentiality of client information and t…
Does a stranger who sends an unsolicited email become a prospective client the lawyer owes confidentiality to?
The opinion concludes that a person who sends a unilateral, unsolicited communication has no reasonable expectation that the lawyer is willing to discuss forming a relationship, so the duties owed to …
Can a part-time assistant district attorney also defend criminal cases in private practice, and what happens to the lawyer's firm?
The opinion concludes that because a Wisconsin prosecutor's client is the State, a part-time assistant district attorney has a non-waivable conflict barring the lawyer from representing criminal defen…
Does a lawyer presenting a forms seminar create a lawyer-client relationship, and may law students help attendees fill out the forms?
If the lawyer gives only legal information, no lawyer-client relationship forms and students may help complete forms; if legal advice is given, the program must run under SCR Chapter 50 supervision an…
When does talking to a prospective client who does not retain you disqualify you from representing the other side?
The opinion concludes that under SCR 20:1.18(c) a lawyer who consulted a prospective client may later represent an adverse party in the same or a substantially related matter unless the lawyer receive…
What ethical duties does a lawyer take on by receiving or paying a referral fee in Wisconsin?
The opinion concludes that under SCR 20:1.5(e)(3) a referring lawyer who shares a fee assumes the same responsibility for the representation as a partner of the receiving lawyer: the referring lawyer …
Can a Family Court Commissioner later serve as guardian ad litem in a case the commissioner already acted on?
The opinion concludes that under SCR 20:1.12(a) a lawyer who participated personally and substantially in a matter as a Family Court Commissioner (an adjudicative officer) cannot later act as guardian…
What must a Wisconsin lawyer tell a client about fees and expenses, and when does that have to be in writing?
The opinion concludes that a lawyer must communicate the scope of the representation, the basis or rate of the fee, and the expenses the client will bear, in enough detail for the client to understand…
What are a prosecutor's ethical duties when dealing with an unrepresented person in Wisconsin?
The opinion concludes that under the amended SCR 20:3.8 a prosecutor must identify their role and interest to an unrepresented person, must tell a person with a right to counsel how to obtain one and …
If a client signed a doctor's lien on settlement proceeds but the lawyer never agreed to honor it, can the lawyer disburse the funds to the client?
No, not while the claim is disputed. The opinion concludes that once a lawyer has notice that a third party asserts an interest in specific trust funds identified by lien, court order, judgment, or co…
When an organization is represented, which of its current or former employees can opposing counsel contact without the organization lawyer's consent?
The opinion concludes that under SCR 20:4.2 opposing counsel may not contact, without the organization lawyer's consent, current constituents who direct or regularly consult with that lawyer about the…
Can a lawyer accept a fee or commission for recommending a nonlawyer service provider to a client?
The opinion concluded that the rules did not flatly prohibit a lawyer from receiving consideration for recommending a nonlawyer's services to a client, but that a referral fee which in substance incre…
What must lawyers do when they share office space, staff, and equipment with other lawyers or with nonlawyers?
The opinion concluded that the rules did not prohibit lawyers from sharing office space, staff, or equipment with other lawyers or nonlawyers, provided they protected client confidences, did not hold …
Can one lawyer represent both the host driver and the guest passenger in a car-accident personal injury claim?
The opinion concluded that joint representation of a host driver and guest passenger was not per se prohibited, but turned on a conflicts analysis under SCR 20:1.7. The lawyer could not represent both…
Can defense counsel for an insured send billing detail to the insurer's outside auditor, and must counsel accept the insurer's defense restrictions?
The opinion concluded that a lawyer representing both an insurer and an insured could not submit billing detail containing confidential information to the insurer's outside auditor without the insured…
When may a Wisconsin law firm use temporary or contract attorneys, and what conflict and confidentiality rules apply?
The opinion adopted ABA Formal Opinion 88-356, concluding that a firm may use temporary or contract lawyers if the firm and the lawyer guard against conflicts of interest, maintain confidentiality, an…
Does a prosecutor violate the no-contact rule when caseworkers from another county agency contact represented parents in a CHIPS case?
The opinion concluded that the prosecutor does not violate SCR 20:4.2 when county child-welfare workers contact represented parents while carrying out their statutory CHIPS investigation duties, becau…
What must a lawyer do when a client cannot be located and the lawyer has lost all contact?
The opinion concluded that because the duties of communication, consultation, and following a client's instructions depend on knowing the client's whereabouts, a lawyer who has lost contact must make …
Can a Wisconsin attorney post bail for an arrested person, and does it matter whose money is used?
The opinion concluded that an attorney may post bail using funds that are not the attorney's own, including issuing a trust check from a client's own funds, without ethical violation. But a Wisconsin …
Does a volunteer attorney giving general legal information form an attorney-client relationship, and can they advise both sides?
The opinion concluded that whether an attorney-client relationship forms is a fact question turning on the parties' intent. It is not formed merely because a caller knows the volunteer is an attorney,…
When a client stops paying, can a lawyer withhold services, withdraw, or keep the client's file until the bill is paid?
The opinion concluded that a lawyer may not withhold services in a continuing representation to pressure a client to pay, because the duties of competence, diligence, and loyalty leave no room for int…
Can a law firm send a paralegal, instead of a lawyer, to attend a real estate closing on a client's behalf?
The opinion concluded that a properly trained paralegal may attend a real estate closing on a client's behalf where a firm lawyer has reviewed the documents, the paralegal gives no legal advice, and t…
Can in-house counsel represent someone other than the employer, at the employer's direction, while still being paid by the employer?
The opinion concluded that in-house counsel may, with safeguards, represent a third party at the employer's direction while paid by the employer, but in doing so steps outside the in-house role. The o…
Can a private party's lawyer contact government officials directly when the agency is represented by counsel in the matter?
The opinion concluded that under SCR 20:4.2 a lawyer for a private party generally may not directly contact covered government officials about a matter once the lawyer knows the agency is represented …
Can an estate-planning lawyer hire nonlawyer financial planners as contractors to gather client data and help prepare documents?
The opinion concluded that an estate-planning lawyer's use of nonlawyer financial planners and investment advisors as independent contractors, paid hourly to give free consultations gathering data for…
Can a lawyer represent someone who decides to hire the lawyer after attending the lawyer's seminar presentation?
The opinion concluded that yes, a lawyer may accept as a client a person who chooses to consult the lawyer as a result of attending the lawyer's presentation at a seminar or other educational or clien…
Can a law firm mail written invitations to a law-office open house to local business owners it has no prior relationship with?
The opinion concluded that yes, a firm may send written invitations to a law-office open house to members of the public, including neighboring business owners. Relying on Shapero v. Kentucky Bar Assoc…
If a lawyer raises the hourly rate on a referred case so the increase can be paid to the referring lawyer, must the client be told?
The opinion concluded that yes, in every case the client must be told that the receiving lawyer's hourly fee was increased because of the referral. The committee treated the arrangement as a division …
When does a lawyer's duty to tell the court about directly adverse controlling authority end?
The opinion concluded that the duty under SCR 20:3.3(a)(3) to disclose directly adverse legal authority from the controlling jurisdiction continues until disclosure would no longer be useful to the tr…
Can an estate-planning lawyer hire a financial planner to inventory assets, explore options, and witness documents for the lawyer's clients?
The opinion concluded that yes, an estate-planning lawyer may retain a financial planner, with the client's knowledge and consent and at a reasonable fee, provided the arrangement complies with SCR 20…
Can a prosecutor talk to an unrepresented criminal defendant about the case after charges are filed but before the first court appearance?
The opinion concluded that yes, a prosecutor may discuss the case with an unrepresented criminal defendant after a formal prosecution has begun by the filing and service of a summons and complaint but…
Can a lawyer knowingly file a small-claims action in a venue chosen only to embarrass, delay, or burden the other side?
The opinion concluded that no. The committee held that knowingly commencing a legal proceeding in an improper venue primarily to burden the defendant violates SCR 20:4.4, which prohibits using means t…
When may a lawyer or law firm use the 'of counsel' title, and what conflicts does the relationship create?
The opinion concluded that, adopting ABA Formal Opinion 90-357, a lawyer or firm may use 'of counsel' (or variants such as 'counsel,' 'special counsel,' or 'senior counsel') only when the relationship…
In a child-support enforcement case, what does a corporation counsel who represents only the state have to tell the parents and child?
The opinion concluded that a corporation counsel or district attorney providing child-support enforcement services under Wis. Stat. § 767.075(2)(a) represents only the state, with no attorney-client r…
Can a personal injury lawyer's direct-mail letter say the lawyer can suggest health-care providers to accident victims who have no treating doctor?
The opinion concluded that such advertising is misleading without a caveat. Telling accident victims by targeted direct mail that the lawyer 'can suggest various health-care providers' is misleading u…
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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.