Ethically Speaking

Listen to this article

Nate Cade

Ethics 2000, the revisions to Wisconsin’s Rules of Professional Conduct, is complete. No, seriously, it is done.

The Supreme Court finally approved Ethics 2000 at an administrative hearing on Dec. 11, 2006. The revisions to the Rules of Professional Conduct go into effect as of July 1, 2007. I surely will spend some of my future columns discussing the changes to the rules, how those changes affect the Wisconsin practitioner and what was included. However, in the interest of the holidays, I wanted to devote this column to what is missing from Ethics 2000.

Specifically, the fact that the Supreme Court (in January of this year, but with no changes in the last 11 months) took the easy road and failed to pass a rule regarding either the reporting or the providing of pro bono legal services. Instead, the court unanimously adopted the ABA’s Model Rule 6.1, rather than the proposed Rule 6.1

To the non-ethics geek, the difference probably means little. But to the public, to our clients and to each other, the differences between the two drafts speak volumes.

The ABA Model Rule 6.1 identifies the types of services that one can consider pro bono, the organizations to whom the services may be provided, how those services are to be provided, and also indicates that a lawyer also can make financial contributions to discharge their “voluntary” obligation to do for others. While it sounds great, it means nothing!

The ABA Model Rule has no mechanism to make sure that a lawyer complies with it. There is no penalty for failing to comply. No risk of discipline for ignoring the less fortunate. Instead, the rule merely sets aspirations, goals and ideals. It is akin to the United Nations telling a rogue state like North Korea that “You better get back to the bargaining table or else.”

The only thing the ABA Model Rule does is identify the goals we have for the profession, and then explains why we will never achieve those goals. I bet you are as puzzled as I am as to how you can have a rule that has no teeth, no consequences, no mechanism to ensure compliance. You can bet that no Wisconsin lawyer will ever see themselves disciplined for failing to comply with it.

And perhaps that is the way it should be? A very vocal number of the State Bar members were opposed to the Supreme Court (and in turn, the Ethics 2000 Commission) telling them that they had to provide pro bono services, that everyone should contribute in their own way, a lawyer should not be disciplined for not providing services, etc.

Maybe this vocal group convinced the court. Maybe the court needed no convincing. But this proves my initial point — why have the rule in the first place if there is no basis whatsoever for anyone to be disciplined for it?

That is partly why the Ethics 2000 Commission threw down the proverbial gauntlet and drafted a revised Rule 6.1. The revised rule that the commission wanted to put forward stated simply that: “A lawyer should provide pro bono legal services… A lawyer discharges this responsibility by providing annually 50 hours of pro bono legal services or a comparable amount of financial support for organizations that provide legal services to persons of limited means.”

This revised rule did not mandate discipline for failing to comply with it, but did discuss the rule-based concepts of “should” and “discharges of this responsibility.” And it likely would have proven that the “emperor has no clothes.”

There is little doubt that despite working more and more, our society, in Wisconsin and nationally, grows poorer. While many can afford life’s luxuries, many in society cannot afford to have their legal rights protected by those with the best ability to protect. Take a moment and watch a crowded courtroom in family court or small claims, and observe the machine at work.

It cannot slow down to explain to the poor or uneducated why it operates, what the rules are, or how to defend oneself. Do not call me a bleeding-heart liberal. I just think that if there is to be a fight, it should be fair. And it is not fair right now.

But don’t allow me to tug at your heart or purse strings. Instead, think of your clients for a moment. Think to any of the cases you have where the party on the other side is unrepresented, poor, etc.

Isn’t it amazing how the court cuts that person an enormous amount of slack for being unrepresented, poor, etc.? Yes, you may ultimately win that fight, but how much does it cost your client in terms of multiple hearings, denial of summary judgment motions, etc.? What would happen if there was a lawyer on the other side — would the fact that another professional is involved make it more or less likely that a settlement is reached and your client is spared enormous expense?

The revised rule that the Ethics 2000 Commission put forward sought to prove that we cannot sit back and do nothing while rights get trampled or a backlog is created in our courts because of the number of cases that crowd a docket.

Regardless of how you view the issue, at least the commission put forward a rule. Rule 6.1, as it now stands, is not a rule. It just shows that rules are meant to be broken, or at least not followed. We should expect better of ourselves if we expect others to think better of us.

Happy holidays!

Nate Cade is a partner practicing in litigation at Michael Best & Friedrich LLP, where he is a member of the firm’s Tort Liability Practice Group. He can be reached at [email protected].