Ethics 2000

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A sigh of satisfaction and a few congratulatory handshakes was how Thomas J. Basting formally celebrated the Wisconsin Supreme Court’s conclusion of the Ethics 2000 saga on Dec. 11.

Basting, the vice chairman of the 18 member committee assigned to investigate and revise SCR 20; the Rules of Professional Conduct for Attorneys, was in attendance when the Supreme Court adopted the final four provisions.

“On behalf of the Ethics 2000 Commission, I think everyone who worked on the project, worked very, very hard and it’s been a long, long journey,” said Basting. “I think everyone will be very happy with the final result and the rules that the court has now adopted.”

Supreme Court Commissioner Julie Anne Rich anticipated that an updated public draft would be available in the coming week and posted on the Supreme Court and State Bar Web sites. A formal order is expected to be released prior to the end of 2006 and the changes will take effect on July 1, 2007.

A Taxing Issue

Throughout its almost five-year evolution, Ethics 2000 faced opposition to some elements of the proposal. One potential last-minute amendment dealt with attorney tax delinquency.

The Wisconsin Department of Revenue (DOR) presented a petition (06-05), which would have allowed the Supreme Court to suspend or deny law licenses to those attorneys who were willfully delinquent in tax payments.

Proposed as a regulatory standard in accordance with other professionals, the DOR hoped the petition would be approved as an independent statute. The Court in-stead chose to explore the potential of refining portions of the petition and including them in Ethics 2000.

Opposed by the State Bar, the Supreme Court held the petition in abeyance after presentations and discussion at an open conference on Oct. 24. The suggestion by Justice N. Patrick Crooks to confer with the DOR and other legal organizations to develop a compromise proved to be a viable option as the Supreme Court adopted a comment in SCR 20:8.4(f).

“The intentional violation of tax laws, including failure to file tax returns or failure to pay taxes may violate 8.4 (f), absent a showing of inability to pay.” Matter of Disciplinary Proceedings Against Cassidy, 172 Wis.2d 600, 493 N.W.2d 362 (1992).

“The court’s decision to add a comment to 8.4(f) was clearly intended as an ‘alternate solution’ to the petition and the DOR, as well as the State Bar and OLR, were involved in the process of drafting the comment,” said Rich who added that technically the petition is still being held in abeyance by an order dated Nov. 21, 2006.

Meredith E. Helgerson, Communi-cations Officer for the DOR expressed the department’s satisfaction with the Supreme Court’s decision.

“We are pleased with the proposed comment in Ethics 2000,” said Helgerson. “We believe this will allow us to achieve our goal of fair and consistent treatment of all professional licensees in Wisconsin.”

Rich also noted that the comment does not address the aspect of the petition which pertained to bar applicants and that the BBE will likely address the issue early next year.

BBE Director John E. Kosobucki believes that the current statute concerning character and fitness gives the board authority to deny certification if an applicant is delinquent in tax payment, but a rules committee will examine possibilities to strengthen the language at the March 2, 2007 meeting.

Insurance, Fees and Responsibility

The Supreme Court swiftly and unanimously finalized three other stipulations of Ethics 2000. The first dealt with retention of lawyers by an insurer.

Four proposals of subsection 1.2(e) were drafted and the court adopted what they believed to be the clearest definition of retention limits. Original language re-strained an insurer’s retention of counsel on behalf of a client to matters related to insurance coverage.

The justices narrowed the definition to limit representation to matters related to the defense of claims made against the insured.

Comments developed on March 15, 2006 and pertaining to subsection 1.5; Fees, were adopted as well. The court upheld changes to advance/retainer, arbitration and fees estimates.

Rich noted that specifics of the advance/ retainer comment will be revisited when the court considers the proposed amendments to the Trust Account Rule, SCR 20:1.15 on Jan. 17, 2007.

Finally,
the court finalized 3.8; Special Responsibilities of a Prosecutor. In 3.8(a) the court defined the need for “probable cause” rather than the revised “adequate factual basis” when an attorney prosecutes a criminal case that could result in deprivation of liberty.

The court upheld revisions from the March 15, 2006 draft which exempted municipal prosecutors from the provisions of 3.8(d) and (f). The exemptions concern communication with unrepresented litigants and criminal case proceedings potentially involving the depravation of liberty.

A comment will also be included in SCR 20:4.3; Dealing with unrepresented person, to indicate it should be read with reference with reference to 3.8.