ON ETHICS: Know when to ask for help with OLR complaints

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I recently finished doing some home repair work on my house by installing new baseboard trim and crown molding on the second floor.

When I started this project on the first floor, I had the help of a friend who happens to be in the trade. In essence, I was the helper, grabbing supplies, moving ladders, sweeping, and if I was lucky, getting to operate the miter saw.

As the work progressed, my friend trusted me enough to start making (and remaking) the various cuts of all of the molding pieces. And this project has gone on long enough that he now has entrusted me to do a fair amount of the work on my own (much to my wife’s chagrin). Over time, I have gotten better doing this field work, which when coupled with an older home that has walls out of square, is no easy feat.

But, just because I can operate the miter saw and I know how to replace the gas canister on the cordless nail gun does not mean that I could build a home (or even a garage) on my own.

Yes, I could read up on all of the things that need to be done and steps that must occur. But reading alone does not make a very good finished product. It takes time and experience, which is often why carpenters (or any other trades, including lawyers) need an apprenticeship of sorts before becoming good enough to do things alone.

Which is why I often am amazed at how bad we, as lawyers, are at heeding our own advice. More specifically, if one takes the time to read some of the discipline cases, which sometimes are as interesting as watching paint dry, it is troubling to read how many lawyers defend themselves before the Office of Lawyer Regulation.

No lawyer would ever advise a potential client to go it alone (i.e. sans lawyer) when charged with a crime. Not only are these potential clients not well-versed or able to discern some of the subtle nuances inherent in the law, but more importantly, being able to read about the law is far different than the actual practice of law. In short, these potential clients just do not have the experience to go it alone.

Yet, that is often what most members of the bar do when confronted by OLR: They go it alone. Whether it is because of a form of hubris drilled into us from the first day of law school, being cheap and unwilling to pay for the legal advice, or just plain stupidity, we often think “Hey, I am a lawyer – how hard could it be?”

Yes, generally representing oneself before the OLR is not a difficult task. The rules of evidence and civil procedure apply. There is a hearing conducted by a referee and a formal decision is rendered. But in reading some of the discipline cases, it is clear that the old adage of “a fool for a client” is truer than ever.

Just think about it – how objective are you when telling stories about yourself? Every fact given is in a light favorable to you, not objective. No one likes to believe that they are a scofflaw running afoul of the rules.

And, most importantly, just as an older home is likely to have hidden issues, such as walls that are not square, so too can an ethics complaint in which one is in too deep.

Fortunately for lawyers who practice in this state, the Wisconsin Rules of Professional Responsibility make it easy to get assistance without giving up too much autonomy. Specifically, Rule 20:1.6(c)(3) permits a lawyer to consult with other lawyers about the lawyer’s own conduct under the rules.

In practice, a lawyer can reveal client confidences to another who is not in the same firm in order to receive legal advice. In fact, the Wisconsin Supreme Court all but congratulated a lawyer for actually seeking legal advice, albeit internally within his law firm, to determine if a conflict existed and how to handle it. See OLR v. Torvinen, 2010 WI 123.

So yes, you can buy a friend a beer and talk about that problem client, or what is going on within the firm, if you need the advice to remain ethical in your conduct. But if you are having that drink with yourself to discuss your ethical issues, or worse, you are getting good at representing yourself before OLR because of the number of complaints you have defended alone, perhaps there is a problem.