# RULES OF PROFESSIONAL CONDUCT FOR

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## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

SCR CHAPTER 20
RULES OF PROFESSIONAL CONDUCT FOR
ATTORNEYS
INDEX (continued)
COUNSELOR
2.1 Advisor
2.2 Omitted
2.3 Evaluation for use by 3rd persons
2.4 Lawyer serving as 3rd-party neutral
ADVOCATE
3.1 Meritorious claims and contentions
3.2 Expediting litigation
3.3 Candor toward the tribunal
3.4 Fairness to opposing party and counsel
3.5 Impartiality and decorum of the tribunal
3.6 Trial publicity
3.7 Lawyer as witness
3.8 Special responsibilities of a prosecutor
3.9 Advocate in nonadjudicative proceedings
3.10 Omitted
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
4.1 Truthfulness in statements to others
4.2 Communication with person represented by counsel
4.3 Dealing with unrepresented person
4.4 Respect for rights of 3rd persons
4.5 Guardians ad litem
LAW FIRMS AND ASSOCIATIONS
5.1 Responsibilities of partners, managers, and supervisory lawyers
5.2 Responsibilities of a subordinate lawyer
5.3 Responsibilities regarding nonlawyer assistants
5.4 Professional independence of a lawyer
5.5 Unauthorized practice of law
5.6 Restrictions on right to practice
5.7 Limited liability legal practice
5.8 Responsibilities Regarding Law-Related Services
PUBLIC SERVICE
6.1 Voluntary pro bono publico service
6.2 Accepting appointments

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6.3 Membership in legal services organizations
6.4 Law reform activities affecting client interests
6.5 Nonprofit and court-annexed limited legal services programs
INFORMATION ABOUT LEGAL SERVICES
7.1 Communications concerning a lawyer's services
7.2 Advertising
7.3 Direct contact with prospective clients
7.4 Communication of fields of practice
7.5 Firm names and letterheads
7.6 Political contributions to obtain government legal engagements or appointments
by judges
MAINTAINING THE INTEGRITY OF THE PROFESSION
8.1 Bar admission and disciplinary matters
8.2 Judicial and legal officials
8.3 Reporting professional misconduct
8.4 Misconduct
8.5 Disciplinary authority; choice of law

COUNSELOR
SCR 20:2.1 Advisor
In representing a client, a lawyer shall exercise independent
professional judgment and render candid advice. In rendering advice, a
lawyer may refer not only to law but to other considerations such as
moral, economic, social, and political factors that may be relevant to the
client's situation.
ABA COMMENT
Scope of Advice
[1] A client is entitled to straightforward advice expressing the lawyer's honest assessment.
Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to
confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in
as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid
advice by the prospect that the advice will be unpalatable to the client.
Advice couched in narrow legal terms may be of little value to a client, especially where
practical considerations, such as cost or effects on other people, are predominant. Purely technical legal
advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and
ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and
ethical considerations impinge upon most legal questions and may decisively influence how the law
will be applied.
[2] A client may expressly or impliedly ask the lawyer for purely technical advice. When
such a request is made by a client experienced in legal matters, the lawyer may accept it at face value.

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When such a request is made by a client inexperienced in legal matters, however, the lawyer's
responsibility as advisor may include indicating that more may be involved than strictly legal
considerations.
[3] Matters that go beyond strictly legal questions may also be in the domain of another
profession. Family matters can involve problems within the professional competence of psychiatry,
clinical psychology or social work; business matters can involve problems within the competence of
the accounting profession or of financial specialists. Where consultation with a professional in another
field is itself something a competent lawyer would recommend, the lawyer should make such a
recommendation. At the same time, a lawyer's advice at its best often consists of recommending a
course of action in the face of conflicting recommendations of experts.
Offering Advice
[4] In general, a lawyer is not expected to give advice until asked by the client. However,
when a lawyer knows that a client proposes a course of action that is likely to result in substantial
adverse legal consequences to the client, the lawyer's duty to the client under Rule 1.4 may require that
the lawyer offer advice if the client's course of action is related to the representation. Similarly, when
a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms
of dispute resolution that might constitute reasonable alternatives to litigation. A lawyer ordinarily has
no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is
unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's
interest.

SCR 20:2.2 Omitted.
SCR 20:2.3 Evaluation for use by 3rd persons
(a) A lawyer may provide an evaluation of a matter affecting a
client for the use of someone other than the client if the lawyer reasonably
believes that making the evaluation is compatible with other aspects of
the lawyer's relationship with the client.
(b) When the lawyer knows or reasonably should know that the
evaluation is likely to affect the client's interests materially and adversely,
the lawyer shall not provide the evaluation unless the client gives
informed consent.
(c) Except as disclosure is authorized in connection with a report
of an evaluation, information relating to the evaluation is otherwise
protected by SCR 20:1.6.
ABA COMMENT
Definition
[1] An evaluation may be performed at the client's direction or when impliedly authorized in
order to carry out the representation. See Rule 1.2. Such an evaluation may be for the primary purpose
of establishing information for the benefit of third parties; for example, an opinion concerning the title
of property rendered at the behest of a vendor for the information of a prospective purchaser, or at the
behest of a borrower for the information of a prospective lender. In some situations, the evaluation
may be required by a government agency; for example, an opinion concerning the legality of the

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securities registered for sale under the securities laws. In other instances, the evaluation may be
required by a third person, such as a purchaser of a business.
[2] A legal evaluation should be distinguished from an investigation of a person with whom
the lawyer does not have a client-lawyer relationship. For example, a lawyer retained by a purchaser
to analyze a vendor's title to property does not have a client-lawyer relationship with the vendor. So
also, an investigation into a person's affairs by a government lawyer, or by special counsel by a
government lawyer, or by special counsel employed by the government, is not an evaluation as that
term is used in this Rule. The question is whether the lawyer is retained by the person whose affairs
are being examined. When the lawyer is retained by that person, the general rules concerning loyalty
to client and preservation of confidences apply, which is not the case if the lawyer is retained by
someone else. For this reason, it is essential to identify the person by whom the lawyer is retained.
This should be made clear not only to the person under examination, but also to others to whom the
results are to be made available.
Duties Owed to Third Person and Client
[3] When the evaluation is intended for the information or use of a third person, a legal duty
to that person may or may not arise. That legal question is beyond the scope of this Rule. However,
since such an evaluation involves a departure from the normal client-lawyer relationship, careful
analysis of the situation is required. The lawyer must be satisfied as a matter of professional judgment
that making the evaluation is compatible with other functions undertaken in behalf of the client. For
example, if the lawyer is acting as advocate in defending the client against charges of fraud, it would
normally be incompatible with that responsibility for the lawyer to perform an evaluation for others
concerning the same or a related transaction. Assuming no such impediment is apparent, however, the
lawyer should advise the client of the implications of the evaluation, particularly the lawyer's
responsibilities to third persons and the duty to disseminate the findings.
Access to and Disclosure of Information
[4] The quality of an evaluation depends on the freedom and extent of the investigation upon
which it is based. Ordinarily a lawyer should have whatever latitude of investigation seems necessary
as a matter of professional judgment. Under some circumstances, however, the terms of the evaluation
may be limited. For example, certain issues or sources may be categorically excluded, or the scope of
search may be limited by time constraints or the noncooperation of persons having relevant
information. Any such limitations that are material to the evaluation should be described in the report.
If after a lawyer has commenced an evaluation, the client refuses to comply with the terms upon which
it was understood the evaluation was to have been made, the lawyer's obligations are determined by
law, having reference to the terms of the client's agreement and the surrounding circumstances. In no
circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in
providing an evaluation under this Rule. See Rule 4.1.
Obtaining Client's Informed Consent
[5] Information relating to an evaluation is protected by Rule 1.6. In many situations,
providing an evaluation to a third party poses no significant risk to the client; thus, the lawyer may be
impliedly authorized to disclose information to carry out the representation. See Rule 1.6(a). Where,
however, it is reasonably likely that providing the evaluation will affect the client's interests materially
and adversely, the lawyer must first obtain the client's consent after the client has been adequately
informed concerning the important possible effects on the client's interests. See Rules 1.6(a) and 1.0(e).

Financial Auditors' Requests for Information
[6] When a question concerning the legal situation of a client arises at the instance of the
client's financial auditor and the question is referred to the lawyer, the lawyer's response may be made
in accordance with procedures recognized in the legal profession. Such a procedure is set forth in the
American Bar Association Statement of Policy Regarding Lawyers' Responses to Auditors' Requests

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for Information, adopted in 1975.

SCR 20:2.4 Lawyer serving as 3rd-party neutral
(a) A lawyer serves as a 3rd-party neutral when the lawyer assists
two or more persons who are not clients of the lawyer to reach a
resolution of a dispute or other matter that has arisen between them.
Service as a 3rd-party neutral may include service as an arbitrator, a
mediator or in such other capacity as will enable the lawyer to assist the
parties to resolve the matter.
(b) A lawyer serving as a 3rd-party neutral shall inform
unrepresented parties that the lawyer is not representing them. When the
lawyer knows or reasonably should know that a party does not understand
the lawyer's role in the matter, the lawyer shall explain the difference
between the lawyer's role as a 3rd-party neutral and a lawyer's role as one
who represents a client.
(c)(1) A lawyer serving as mediator in a case arising under ch.
767, stats., in which the parties have resolved one or more issues being
mediated may draft, select, complete, modify, or file documents
confirming, memorializing, or implementing such resolution, as long
as the lawyer maintains his or her neutrality throughout the process and
both parties give their informed consent, confirmed in a writing signed
by the parties to the mediation. For purposes of this subsection,
informed consent requires, at a minimum, the lawyer to disclose to each
party any interest or relationship that is likely to affect the lawyer's
impartiality in the case or to create an appearance of partiality or bias
and that the lawyer explain all of the following to each of the parties:
a. The limits of the lawyer's role.
b. That the lawyer does not represent either party to the
mediation.
c. That the lawyer cannot give legal advice or advocate on behalf
of either party to the mediation.
d. The desirability of seeking independent legal advice before
executing any documents prepared by the lawyer-mediator.
(2) The drafting, selection, completion, modification, and filing
of documents pursuant to par. (1) does not create a client-lawyer
relationship between the lawyer and a party.
(3) Notwithstanding par. (2), in drafting, selecting, completing
or modifying the documents referred to in par. (1), a lawyer serving as
mediator shall exercise the same degree of competence and shall act

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with the same degree of diligence as SCRs 20:1.1 and 20:1.3 would
require if the lawyer were representing the parties to the mediation.
(4) A lawyer serving as mediator who has prepared documents
pursuant to par. (1) may, with the informed consent of all parties to the
mediation, file such documents with the court. However, a lawyer who
has served as a mediator may not appear in court on behalf of either or
both of the parties in mediation.
(5) Any document prepared pursuant to this subsection that is
filed with the court shall clearly indicate on the document that it was
"prepared with the assistance of a lawyer acting as mediator."
WISCONSIN COMMENT
Mediation is a process designed to resolve disputes between two or more parties
through agreement facilitated by a neutral person. Although many lawyers
routinely act as mediators, there has been some concern about the applicability of
the SCRs to lawyers acting as mediators. However, the selection, drafting,
completion, modification, or filing of legal documents or agreements to
memorialize or implement a mediated settlement does constitute the practice of
law and is regulated by SCR Chapter 23. See SCR 23.01. The purpose of
subsection (c) is to clarify that a lawyer serving as mediator in a Chapter 767
proceeding may, while acting in that capacity, memorialize the outcome of the
mediation, if it can be done without compromising his or her neutrality and that,
by doing so, the lawyer does not assume a client-lawyer relationship with either
party. The lawyer serving as mediator may not at any stage of the process attempt
to advance the interests of one party at the expense of any other party.
Although a lawyer acting as mediator should strive to anticipate the
issues and resolve them prior to documenting the outcome of the mediation, the
process of documenting itself may illuminate or create previously unforeseen
issues. For this reason, the mediator should make it clear to the parties that the
process of documentation is part of the mediation and the mediator must maintain
neutrality throughout that process.
Likewise, even after documents confirming, memorializing, or
implementing the resolution of issues have been finalized, other previouslyunidentified or unresolved issues may arise. The mediator may, as an extension
of the original mediation, continue in a neutral capacity to assist the parties in
resolving and memorializing those issues. While this rule does not require the
mediator to resolve or memorialize all issues, the prudent mediator may want to
consider identifying any issues the parties have intentionally left unresolved.
Documents drafted, selected, completed or modified by a mediator can
have consequences an unrepresented party might not perceive. Although an
attorney acting as neutral mediator may attempt to explain those consequences to
the parties in mediation, he or she does not stand in a client-lawyer relationship
with either party and may not give legal advice to either or both parties while
acting in that neutral capacity. Moreover, because the line between discussing
consequences and dispensing advice is not always clear, a lawyer acting as
mediator who chooses to explain those consequences should take care to avoid
offering or appearing to offer legal advice. For these reasons, and to emphasize to
the parties that the lawyer acting as mediator does not represent the parties,
subsection (c)(1)(d) requires an attorney who has mediated a dispute between

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unrepresented parties to recommend that each seek independent legal advice
before executing the documents that attorney has drafted, selected, completed, or
modified.
Notwithstanding that no client-lawyer relationship is created when a
lawyer-mediator drafts documents pursuant to this rule, subsection (c)(3) imposes
duties of competence and diligence in connection with the drafting of such
documents. A lawyer who fails to fulfill such duties violates SCR 20:2.4(c)(4).
Filing documents prepared pursuant to this subsection in court can often
be accomplished most efficiently by a lawyer familiar with the documents and, as
long as done with the consent of the parties to the mediation, may be accomplished
by the mediator without impairing his or her neutrality. However, any appearance
by a lawyer in court on behalf of one or more parties is so closely associated with
advocacy that it could compromise the appearance of neutrality and/or provide an
occasion to depart from it. For this reason, although a lawyer who has served as
a mediator may file documents with the court, such a lawyer may not appear in
court on behalf of one or both parties. A lawyer who has served as a third party
neutral, such as a mediator in a matter, may not thereafter represent any party at
any stage of the matter. See SCR 20:1.12.
Because the lawyer-mediator does not have a client-lawyer relationship
with any of the parties, SCR 20:1.2(cm) does not apply. Subsection (5) makes it
clear that the lawyer-mediator must make an equivalent disclosure. Filing of
documents by a lawyer-mediator pursuant to this rule does not constitute an
appearance in the matter.

ABA COMMENT
[1] Alternative dispute resolution has become a substantial part of the civil justice system.
Aside from representing clients in dispute-resolution processes, lawyers often serve as third-party
neutrals. A third-party neutral is a person, such as a mediator, arbitrator, conciliator or evaluator, who
assists the parties, represented or unrepresented, in the resolution of a dispute or in the arrangement of
a transaction. Whether a third-party neutral serves primarily as a facilitator, evaluator or decision
maker depends on the particular process that is either selected by the parties or mandated by a court.
[2] The role of a third-party neutral is not unique to lawyers, although, in some courtconnected contexts, only lawyers are allowed to serve in this role or to handle certain types of cases.
In performing this role, the lawyer may be subject to court rules or other law that apply either to thirdparty neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may also be
subject to various codes of ethics, such as the Code of Ethics for Arbitration in Commercial Disputes
prepared by a joint committee of the American Bar Association and the American Arbitration
Association or the Model Standards of Conduct for Mediators jointly prepared by the American Bar
Association, the American Arbitration Association and the Society of Professionals in Dispute
Resolution.
[3] Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may
experience unique problems as a result of differences between the role of a third-party neutral and a
lawyer's service as a client representative. The potential for confusion is significant when the parties
are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented
parties that the lawyer is not representing them. For some parties, particularly parties who frequently
use dispute-resolution processes, this information will be sufficient. For others, particularly those who
are using the process for the first time, more information will be required. Where appropriate, the
lawyer should inform unrepresented parties of the important differences between the lawyer's role as
third-party neutral and a lawyer's role as a client representative, including the inapplicability of the
attorney-client evidentiary privilege. The extent of disclosure required under this paragraph will
depend on the particular parties involved and the subject matter of the proceeding, as well as the

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particular features of the dispute-resolution process selected.
[4] A lawyer who serves as a third-party neutral subsequently may be asked to serve as a
lawyer representing a client in the same matter. The conflicts of interest that arise for both the
individual lawyer and the lawyer's law firm are addressed in Rule 1.12.
[5] Lawyers who represent clients in alternative dispute-resolution processes are governed by
the Rules of Professional Conduct. When the dispute-resolution process takes place before a tribunal,
as in binding arbitration (see Rule 1.0(m)), the lawyer's duty of candor is governed by Rule 3.3.
Otherwise, the lawyer's duty of candor toward both the third-party neutral and other parties is governed
by Rule 4.1.

ADVOCATE
SCR 20:3.1 Meritorious claims and contentions
(a) In representing a client, a lawyer shall not:
(1) knowingly advance a claim or defense that is unwarranted
under existing law, except that the lawyer may advance such claim or
defense if it can be supported by good faith argument for an extension,
modification or reversal of existing law;
(am) A lawyer providing limited scope representation pursuant to
SCR 20:1.2(c) may rely on the otherwise self-represented person’s
representation of facts, unless the lawyer has reason to believe that such
representations are false, or materially insufficient, in which instance the
lawyer shall make an independent reasonable inquiry into the facts.
(2) knowingly advance a factual position unless there is a basis for
doing so that is not frivolous; or
(3) file a suit, assert a position, conduct a defense, delay a trial or
take other action on behalf of the client when the lawyer knows or when
it is obvious that such an action would serve merely to harass or
maliciously injure another.
(b) A lawyer for the defendant in a criminal proceeding, or the
respondent in a proceeding that could result in deprivation of liberty, may
nevertheless so defend the proceeding as to require that every element of
the case be established.
WISCONSIN COMMITTEE COMMENT
This Wisconsin Supreme Court Rule differs from the Model Rule in expressly establishing a
subjective test for an ethical violation.

ABA COMMENT
[1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause,
but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the
limits within which an advocate may proceed. However, the law is not always clear and never is static.

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Accordingly, in determining the proper scope of advocacy, account must be taken of the law's
ambiguities and potential for change.
[2] The filing of an action or defense or similar action taken for a client is not frivolous merely
because the facts have not first been fully substantiated or because the lawyer expects to develop vital
evidence only by discovery. What is required of lawyers, however, is that they inform themselves
about the facts of their clients' cases and the applicable law and determine that they can make good
faith arguments in support of their clients' positions. Such action is not frivolous even though the
lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however,
if the lawyer is unable either to make a good faith argument on the merits of the action taken or to
support the action taken by a good faith argument for an extension, modification or reversal of existing
law.
[3] The lawyer's obligations under this Rule are subordinate to federal or state constitutional
law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or
contention that otherwise would be prohibited by this Rule.

SCR 20:3.2 Expediting litigation
A lawyer shall make reasonable efforts to expedite litigation
consistent with the interests of the client.
ABA COMMENT
[1] Dilatory practices bring the administration of justice into disrepute. Although there will be
occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for
a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will a
failure to expedite be reasonable if done for the purpose of frustrating an opposing party's attempt to
obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the
bench and bar. The question is whether a competent lawyer acting in good faith would regard the
course of action as having some substantial purpose other than delay. Realizing financial or other
benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

SCR 20:3.3 Candor toward the tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made to the
tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of
the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer,
the lawyer's client, or a witness called by the lawyer, has offered material
evidence and the lawyer comes to know of its falsity, the lawyer shall
take reasonable remedial measures, including, if necessary, disclosure to
the tribunal. A lawyer may refuse to offer evidence, other than the
testimony of a defendant in a criminal matter that the lawyer reasonably
believes is false.

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(b) A lawyer who represents a client in an adjudicative proceeding
and who knows that a person intends to engage, is engaging, or has
engaged in criminal or fraudulent conduct related to the proceeding shall
take reasonable remedial measures, including, if necessary, disclosure to
the tribunal.
(c) The duties stated in pars. (a) and (b) apply even if compliance
requires disclosure of information otherwise protected by SCR 20:1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of
all material facts known to the lawyer that will enable the tribunal to make
an informed decision, whether or not the facts are adverse.
WISCONSIN COMMITTEE COMMENT
Unlike its Model Rule counterpart, paragraph (c) does not specify when the duties expire. For
this reason, ABA Comment [13] is inapplicable.

ABA COMMENT
[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings
of a tribunal. See Rule 1.0(m) for the definition of "tribunal." It also applies when the lawyer is
representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative
authority, such as a deposition. Thus, for example, paragraph (a)(3) requires a lawyer to take
reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition
has offered evidence that is false.
[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct
that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an
adjudicative proceeding has an obligation to present the client's case with persuasive force.
Performance of that duty while maintaining confidences of the client, however, is qualified by the
advocate's duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding
is not required to present an impartial exposition of the law or to vouch for the evidence submitted in
a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or
evidence that the lawyer knows to be false.
Representations by a Lawyer
[3] An advocate is responsible for pleadings and other documents prepared for litigation, but
is usually not required to have personal knowledge of matters asserted therein, for litigation documents
ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by
the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer's own knowledge,
as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the
lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.
There are circumstances where failure to make a disclosure is the equivalent of an affirmative
misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist
the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the
Comment to that Rule. See also the Comment to Rule 8.4(b).
Legal Argument
[4] Legal argument based on a knowingly false representation of law constitutes dishonesty
toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must
recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(2), an

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advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not
been disclosed by the opposing party. The underlying concept is that legal argument is a discussion
seeking to determine the legal premises properly applicable to the case.
Offering Evidence
[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows
to be false, regardless of the client's wishes. This duty is premised on the lawyer's obligation as an
officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not
violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity.
[6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce
false evidence, the lawyer should seek to persuade the client that the evidence should not be offered.
If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse
to offer the false evidence. If only a portion of a witness's testimony will be false, the lawyer may call
the witness to testify but may not elicit or otherwise permit the witness to present the testimony that
the lawyer knows is false.
[7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel
in criminal cases. In some jurisdictions, however, courts have required counsel to present the accused
as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the
testimony or statement will be false. The obligation of the advocate under the Rules of Professional
Conduct is subordinate to such requirements. See also Comment [9].
[8] The prohibition against offering false evidence only applies if the lawyer knows that the
evidence is false. A lawyer's reasonable belief that evidence is false does not preclude its presentation
to the trier of fact. A lawyer's knowledge that evidence is false, however, can be inferred from the
circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve doubts about the veracity of
testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.
[9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer
knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer
reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to
discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate.
Because of the special protections historically provided criminal defendants, however, this Rule does
not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably
believes but does not know that the testimony will be false. Unless the lawyer knows the testimony
will be false, the lawyer must honor the client's decision to testify. See also Comment [7].
Remedial Measures
[10] Having offered material evidence in the belief that it was true, a lawyer may
subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer's
client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either
during the lawyer's direct examination or in response to cross-examination by the opposing lawyer. In
such situations or if the lawyer knows of the falsity of testimony elicited from the client during a
deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate's
proper course is to remonstrate with the client confidentially, advise the client of the lawyer's duty of
candor to the tribunal and seek the client's cooperation with respect to the withdrawal or correction of
the false statements or evidence. If that fails, the advocate must take further remedial action. If
withdrawal from the representation is not permitted or will not undo the effect of the false evidence,
the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the
situation, even if doing so requires the lawyer to reveal information that otherwise would be protected
by Rule 1.6. It is for the tribunal then to determine what should be done—making a statement about
the matter to the trier of fact, ordering a mistrial or perhaps nothing.
[11] The disclosure of a client's false testimony can result in grave consequences to the client,
including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.

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But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truthfinding process which the adversary system is designed to implement. See Rule 1.2(d). Furthermore,
unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false
evidence, the client can simply reject the lawyer's advice to reveal the false evidence and insist that the
lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the
court.
Preserving Integrity of Adjudicative Process
[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent
conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or
otherwise unlawfully communicating with a witness, juror, court official or other participant in the
proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose
information to the tribunal when required by law to do so. Thus, paragraph (b) requires a lawyer to
take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that
a person, including the lawyer's client, intends to engage, is engaging or has engaged in criminal or
fraudulent conduct related to the proceeding.
Duration of Obligation
[13] A practical time limit on the obligation to rectify false evidence or false statements of
law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for
the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a
final judgment in the proceeding has been affirmed on appeal or the time for review has passed.
Ex Parte Proceedings
[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the
matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be
presented by the opposing party. However, in any ex parte proceeding, such as an application for a
temporary restraining order, there is no balance of presentation by opposing advocates. The object of
an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative
responsibility to accord the absent party just consideration. The lawyer for the represented party has
the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer
reasonably believes are necessary to an informed decision.
Withdrawal
[15] Normally, a lawyer's compliance with the duty of candor imposed by this Rule does not
require that the lawyer withdraw from the representation of a client whose interests will be or have
been adversely affected by the lawyer's disclosure. The lawyer may, however, be required by Rule
1.16(a) to seek permission of the tribunal to withdraw if the lawyer's compliance with this Rule's duty
of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can
no longer competently represent the client. Also see Rule 1.16(b) for the circumstances in which a
lawyer will be permitted to seek a tribunal's permission to withdraw. In connection with a request for
permission to withdraw that is premised on a client's misconduct, a lawyer may reveal information
relating to the representation only to the extent reasonably necessary to comply with this Rule or as
otherwise permitted by Rule 1.6.

SCR 20:3.4 Fairness to opposing party and counsel
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or
unlawfully alter, destroy or conceal a document or other material having
potential evidentiary value. A lawyer shall not counsel or assist another
person to do any such act;

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(b) falsify evidence, counsel or assist a witness to testify falsely, or
offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal,
except for an open refusal based on an assertion that no valid obligation
exists;
(d) in pretrial procedure, make a frivolous discovery request or fail
to make reasonably diligent effort to comply with a legally proper
discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably
believe is relevant or that will not be supported by admissible evidence,
assert personal knowledge of facts in issue except when testifying as a
witness, or state a personal opinion as to the justness of a cause, the
credibility of a witness, the culpability of a civil litigant or the guilt or
innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily
giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client;
and
(2) the lawyer reasonably believes that the person's interests will
not be adversely affected by refraining from giving such information.
ABA COMMENT
[1] The procedure of the adversary system contemplates that the evidence in a case is to be
marshalled competitively by the contending parties. Fair competition in the adversary system is
secured by prohibitions against destruction or concealment of evidence, improperly influencing
witnesses, obstructive tactics in discovery procedure, and the like.
[2] Documents and other items of evidence are often essential to establish a claim or defense.
Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain
evidence through discovery or subpoena is an important procedural right. The exercise of that right
can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many
jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a
pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also
generally a criminal offense. Paragraph (a) applies to evidentiary material generally, including
computerized information. Applicable law may permit a lawyer to take temporary possession of
physical evidence of client crimes for the purpose of conducting a limited examination that will not
alter or destroy material characteristics of the evidence. In such a case, applicable law may require the
lawyer to turn the evidence over to the police or other prosecuting authority, depending on the
circumstances.
[3] With regard to paragraph (b), it is not improper to pay a witness's expenses or to
compensate an expert witness on terms permitted by law. The common-law rule in most jurisdictions
is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay
an expert witness a contingent fee.

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[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving
information to another party, for the employees may identify their interests with those of the client.
See also Rule 4.2.

SCR 20:3.5 Impartiality and decorum of the tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other
official by means prohibited by law;
(b) communicate ex parte with such a person during the
proceeding unless authorized to do so by law or court order or for
scheduling purposes if permitted by the court. If communication between
a lawyer and judge has occurred in order to schedule the matter, the
lawyer involved shall promptly notify the lawyer for the other party or
the other party, if unrepresented, of such communication;
(c) communicate with a juror or prospective juror after discharge
of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to
communicate; or
(3) the communication involves misrepresentation, coercion,
duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal.
WISCONSIN COMMITTEE COMMENT
Paragraph (b) differs from the Model Rule in that it expressly imposes a duty promptly to
notify other parties in the event of an ex parte communication with a judge concerning scheduling.

ABA COMMENT
[1] Many forms of improper influence upon a tribunal are proscribed by criminal law. Others
are specified in the ABA Model Code of Judicial Conduct, with which an advocate should be familiar.
A lawyer is required to avoid contributing to a violation of such provisions.
During a proceeding a lawyer may not communicate ex parte with persons serving in an official
capacity in the proceeding, such as judges, masters or jurors, unless authorized to do so by law or court
order.
[2] A lawyer may on occasion want to communicate with a juror or prospective juror after
the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or
a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not
engage in improper conduct during the communication.
[3] The advocate's function is to present evidence and argument so that the cause may be
decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the
advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but
should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate.
An advocate can present the cause, protect the record for subsequent review and preserve professional

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integrity by patient firmness no less effectively than by belligerence or theatrics.
The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a
deposition. See Rule 1.0(m).

SCR 20:3.6 Trial publicity
(a) A lawyer who is participating or has participated in the
investigation or litigation of a matter shall not make an extrajudicial
statement that the lawyer knows or reasonably should know will be
disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.
(b) A statement referred to in par. (a) ordinarily is likely to have
such an effect when it refers to a civil matter triable to a jury, a criminal
matter, or any other proceeding that could result in deprivation of liberty,
and the statement relates to:
(1) the character, credibility, reputation or criminal record of a
party, suspect in a criminal investigation or witness, or the identity of a
witness, or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in deprivation
of liberty, the possibility of a plea of guilty to the offense or the existence
or contents of any confession, admission, or statement given by a
defendant or suspect or that person's refusal or failure to make a
statement;
(3) the performance or results of any examination or test or the
refusal or failure of a person to submit to an examination or test, or the
identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or
suspect in a criminal case or proceeding that could result in deprivation
of liberty;
(5) information the lawyer knows or reasonably should know is
likely to be inadmissible as evidence in a trial and would if disclosed
create a substantial risk of prejudicing an impartial trial; or
(6) the fact that a defendant has been charged with a crime, unless
there is included therein a statement explaining that the charge is merely
an accusation and that the defendant is presumed innocent until and
unless proven guilty.
(c) Notwithstanding pars. (a) and (b)(1) through (5), a lawyer may
state:
(1) the claim, offense or defense involved and, except when
prohibited by law, the identity of the persons involved;

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(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information
necessary thereto;
(6) a warning of danger concerning the behavior of a person
involved, when there is reason to believe that there exists the likelihood
of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subs. (1) through (6):
(i) the identity, residence, occupation and family status of
the accused;
(ii) if the accused has not been apprehended, information
necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or
agencies and the length of the investigation.
(d) Notwithstanding par. (a), a lawyer may make a statement that
a reasonable lawyer would believe is required to protect a client from the
substantial likelihood of undue prejudicial effect of recent publicity not
initiated by the lawyer or the lawyer's client. A statement made pursuant
to this paragraph shall be limited to such information as is necessary to
mitigate the recent adverse publicity.
(e) No lawyer associated in a firm or government agency with a
lawyer subject to par. (a) shall make a statement prohibited by par. (a).
WISCONSIN COMMITTEE COMMENT
Paragraph (b) contains provisions found in ABA Comment [5] but not contained in the Model
Rule. Because of the addition of paragraph (b), this rule and the Model Rule have differing numbering,
so that care should be used in consulting the ABA Comment.

ABA COMMENT
[1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding
the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of
the information that may be disseminated about a party prior to trial, particularly where trial by jury is
involved. If there were no such limits, the result would be the practical nullification of the protective
effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there
are vital social interests served by the free dissemination of information about events having legal
consequences and about legal proceedings themselves. The public has a right to know about threats to
its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of
judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter
of legal proceedings is often of direct significance in debate and deliberation over questions of public
policy.

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[2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic
relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4(c) requires
compliance with such rules.
[3] The Rule sets forth a basic general prohibition against a lawyer's making statements that
the lawyer knows or should know will have a substantial likelihood of materially prejudicing an
adjudicative proceeding. Recognizing that the public value of informed commentary is great and the
likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the
proceeding is small, the Rule applies only to lawyers who are, or who have been involved in the
investigation or litigation of a case, and their associates.
[4] Paragraph (b) identifies specific matters about which a lawyer's statements would not
ordinarily be considered to present a substantial likelihood of material prejudice, and should not in any
event be considered prohibited by the general prohibition of paragraph (a). Paragraph (b) is not
intended to be an exhaustive listing of the subjects upon which a lawyer may make a statement, but
statements on other matters may be subject to paragraph (a).
[5] There are, on the other hand, certain subjects that are more likely than not to have a
material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a
jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate
to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal
investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea
of guilty to the offense or the existence or contents of any confession, admission, or statement given
by a defendant or suspect or that person's refusal or failure to make a statement;
(3) the performance or results of any examination or test or the refusal or failure of a person
to submit to an examination or test, or the identity or nature of physical evidence expected to be
presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or
proceeding that could result in incarceration;
(5) information that the lawyer knows or reasonably should know is likely to be inadmissible
as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial
trial; or
(6) the fact that a defendant has been charged with a crime, unless there is included therein a
statement explaining that the charge is merely an accusation and that the defendant is presumed
innocent until and unless proven guilty.
[6] Another relevant factor in determining prejudice is the nature of the proceeding involved.
Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive.
Non-jury hearings and arbitration proceedings may be even less affected. The Rule will still place
limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different
depending on the type of proceeding.
[7] Finally, extrajudicial statements that might otherwise raise a question under this Rule may
be permissible when they are made in response to statements made publicly by another party, another
party's lawyer, or third persons, where a reasonable lawyer would believe a public response is required
in order to avoid prejudice to the lawyer's client. When prejudicial statements have been publicly made
by others, responsive statements may have the salutary effect of lessening any resulting adverse impact
on the adjudicative proceeding. Such responsive statements should be limited to contain only such
information as is necessary to mitigate undue prejudice created by the statements made by others.
[8] See Rule 3.8(f) for additional duties of prosecutors in connection with extrajudicial
statements about criminal proceedings.

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SCR 20:3.7 Lawyer as witness
(a) A lawyer shall not act as advocate at a trial in which the lawyer
is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship
on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer
in the lawyer's firm is likely to be called as a witness unless precluded
from doing so by SCR 20:1.7 or SCR 20:1.9.
ABA COMMENT
[1] Combining the roles of advocate and witness can prejudice the tribunal and the opposing
party and can also involve a conflict of interest between the lawyer and client.
Advocate-Witness Rule
[2] The tribunal has proper objection when the trier of fact may be confused or misled by a
lawyer serving as both advocate and witness. The opposing party has proper objection where the
combination of roles may prejudice that party's rights in the litigation. A witness is required to testify
on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence
given by others. It may not be clear whether a statement by an advocate-witness should be taken as
proof or as an analysis of the proof.
[3] To protect the tribunal, paragraph (a) prohibits a lawyer from simultaneously serving as
advocate and necessary witness except in those circumstances specified in paragraphs (a)(1) through
(a)(3). Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual
role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns the extent
and value of legal services rendered in the action in which the testimony is offered, permitting the
lawyers to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover,
in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is less
dependence on the adversary process to test the credibility of the testimony.
[4] Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required
between the interests of the client and those of the tribunal and the opposing party. Whether the tribunal
is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the
case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's
testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in
determining whether the lawyer should be disqualified, due regard must be given to the effect of
disqualification on the lawyer's client. It is relevant that one or both parties could reasonably foresee
that the lawyer would probably be a witness. The conflict of interest principles stated in Rules 1.7, 1.9,
and 1.10 have no application to this aspect of the problem.
[5] Because the tribunal is not likely to be misled when a lawyer acts as advocate in a trial in
which another lawyer in the lawyer's firm will testify as a necessary witness, paragraph (b) permits the
lawyer to do so except in situations involving a conflict of interest.

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Conflict of Interest
[6] In determining if it is permissible to act as advocate in a trial in which the lawyer will be
a necessary witness, the lawyer must also consider that the dual role may give rise to a conflict of
interest that will require compliance with Rules 1.7 or 1.9. For example, if there is likely to be
substantial conflict between the testimony of the client and that of the lawyer the representation
involves a conflict of interest that requires compliance with Rule 1.7. This would be true even though
the lawyer might not be prohibited by paragraph (a) from simultaneously serving as advocate and
witness because the lawyer's disqualification would work a substantial hardship on the client.
Similarly, a lawyer who might be permitted to simultaneously serve as an advocate and a witness by
paragraph (a)(3) might be precluded from doing so by Rule 1.9. The problem can arise whether the
lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining
whether or not such a conflict exists is primarily the responsibility of the lawyer involved. If there is a
conflict of interest, the lawyer must secure the client's informed consent, confirmed in writing. In some
cases, the lawyer will be precluded from seeking the client's consent. See Rule 1.7. See Rule 1.0(b) for
the definition of "confirmed in writing" and Rule 1.0(e) for the definition of "informed consent."
[7] Paragraph (b) provides that a lawyer is not disqualified from serving as an advocate
because a lawyer with whom the lawyer is associated in a firm is precluded from doing so by paragraph
(a). If, however, the testifying lawyer would also be disqualified by Rule 1.7 or Rule 1.9 from
representing the client in the matter, other lawyers in the firm will be precluded from representing the
client by Rule 1.10 unless the client gives informed consent under the conditions stated in Rule 1.7.

SCR 20:3.8 Special responsibilities of a prosecutor
(a) A prosecutor in a criminal case or a proceeding that could result
in deprivation of liberty shall not prosecute a charge that the prosecutor
knows is not supported by probable cause.
(b) When communicating with an unrepresented person in the
context of an investigation or proceeding, a prosecutor shall inform the
person of the prosecutor's role and interest in the matter.
(c) When communicating with an unrepresented person who has a
constitutional or statutory right to counsel, the prosecutor shall inform the
person of the right to counsel and the procedures to obtain counsel and
shall give that person a reasonable opportunity to obtain counsel.
(d) When communicating with an unrepresented person a
prosecutor may discuss the matter, provide information regarding
settlement, and negotiate a resolution which may include a waiver of
constitutional and statutory rights, but a prosecutor, other than a
municipal prosecutor, shall not:
(1) otherwise provide legal advice to the person, including, but not
limited to whether to obtain counsel, whether to accept or reject a
settlement offer, whether to waive important procedural rights or how the
tribunal is likely to rule in the case, or
(2) assist the person in the completion of (i) guilty plea forms (ii)
forms for the waiver of a preliminary hearing or (iii) forms for the waiver
of a jury trial.
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(e) A prosecutor shall not subpoena a lawyer in a grand jury or
other proceeding to present evidence about a past or present client unless
the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any
applicable privilege;
(2) the evidence sought is essential to the successful completion of
an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information.
(f) A prosecutor, other than a municipal prosecutor, in a criminal
case or a proceeding that could result in deprivation of liberty shall:
(1) make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate the guilt of the
accused or mitigates the offense, and, in connection with sentencing,
disclose to the defense and to the tribunal all unprivileged mitigating
information known to the prosecutor, except when the prosecutor is
relieved of this responsibility by a protective order of the tribunal; and
(2) exercise reasonable care to prevent investigators, law
enforcement personnel, employees or other persons assisting or
associated with the prosecutor in a criminal case from making an
extrajudicial statement that the prosecutor would be prohibited from
making under SCR 20:3.6.
(g) When a prosecutor knows of new, credible, and material
evidence creating a reasonable likelihood that a convicted defendant did
not commit an offense of which the defendant was convicted, the
prosecutor shall do all of the following:
(1) promptly disclose that evidence to an appropriate court or
authority; and
(2) if the conviction was obtained in the prosecutor's jurisdiction:
(i) promptly make reasonable efforts to disclose that evidence to
the defendant unless a court authorizes delay; and
(ii) make reasonable efforts to undertake an investigation or cause
an investigation to be undertaken, to determine whether the defendant
was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence
establishing that a defendant in the prosecutor's jurisdiction was
convicted of an offense that the defendant did not commit, the prosecutor
shall seek to remedy the conviction.
WISCONSIN COMMENT
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The Wisconsin Supreme Court Rule differs from the Model Rule in several respects: (1)
paragraph (b) adds the reference to "in the context of an investigation or proceeding"; (2) paragraphs
(c) and (d) expand the rule by deleting a reference to communications occurring only "after the
commencement of litigation"; (3) paragraphs (d) and (f) exempt municipal prosecutors from certain
requirements of the rule. Care should be used in consulting the ABA Comment.
Wisconsin prosecutors have long embraced the notion that the duty to do justice
requires both holding offenders accountable and protecting the innocent. New Rule 20:3.8(g) and (h)
reinforces this notion. The Wisconsin rule differs slightly from the new A.B.A. rule to recognize limits
in the investigative resources of Wisconsin prosecutors.
This rule was not designed to address significant changes in the law that might affect the
incarceration status of a number of prisoners, such as where a statute is declared unconstitutional.

ABA COMMENT
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. This responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the
prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions.
Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution
Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced
in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor
and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could
constitute a violation of Rule 8.4.
[2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a
valuable opportunity to challenge probable cause. Accordingly, prosecutors should not seek to obtain
waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons.
Paragraph (c) does not apply, however, to an accused appearing pro se with the approval of the tribunal.
Nor does it forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights
to counsel and silence.
[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate
protective order from the tribunal if disclosure of information to the defense could result in substantial
harm to an individual or to the public interest.
[4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other
criminal proceedings to those situations in which there is a genuine need to intrude into the clientlawyer relationship.
[5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a
substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal
prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing
public condemnation of the accused. Although the announcement of an indictment, for example, will
necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments
which have no legitimate law enforcement purpose and have a substantial likelihood of increasing
public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which
a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).
[6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to
responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer's
office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with

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the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f)
requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the
prosecutor from making improper extrajudicial statements, even when such persons are not under the
direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the
prosecutor issues the appropriate cautions to law-enforcement personnel and other relevant
individuals.
[7] When a prosecutor knows of new, credible and material evidence creating a reasonable
likelihood that a person outside the prosecutor's jurisdiction was convicted of a crime that the person
did not commit, paragraph (g) requires prompt disclosure to the court or other appropriate authority,
such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was
obtained in the prosecutor's jurisdiction, paragraph (g) requires the prosecutor to examine the evidence
and undertake further investigation to determine whether the defendant is in fact innocent or make
reasonable efforts to cause another appropriate authority to undertake the necessary investigation, and
to promptly disclose the evidence to the court and, absent court-authorized delay, to the defendant.
Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be
made through the defendant's counsel, and, in the case of an unrepresented defendant, would ordinarily
be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking
such legal measures as may be appropriate.
[8] Under paragraph (h), once the prosecutor knows of clear and convincing evidence that
the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek
to remedy the conviction. Necessary steps may include disclosure of the evidence to the defendant,
requesting that the court appoint counsel for an unrepresented indigent defendant and, where
appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit
the offense of which the defendant was convicted.
[9] A prosecutor's independent judgment, made in good faith, that the new evidence is not of
such nature as to trigger the obligations of sections (g) and (h), though subsequently determined to
have been erroneous, does not constitute a violation of this Rule.

SCR 20:3.9 Advocate in nonadjudicative proceedings
A lawyer representing a client before a legislative body of
administrative agency in a nonadjudicative proceeding shall disclose that
the appearance is in a representative capacity and shall conform to the
provisions of SCR 20:3.3(a) through (c), SCR 20:3.4(a) through (c), and
SCR 20:3.5.
ABA COMMENT
[1] In representation before bodies such as legislatures, municipal councils, and executive
and administrative agencies acting in a rule-making or policy-making capacity, lawyers present facts,
formulate issues and advance argument in the matters under consideration. The decision-making body,
like a court, should be able to rely on the integrity of the submissions made to it. A lawyer appearing
before such a body must deal with it honestly and in conformity with applicable rules of procedure.
See Rules 3.3(a) through (c), 3.4(a) through (c) and 3.5.
[2] Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do
before a court. The requirements of this Rule therefore may subject lawyers to regulations inapplicable

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to advocates who are not lawyers. However, legislatures and administrative agencies have a right to
expect lawyers to deal with them as they deal with courts.
[3] This Rule only applies when a lawyer represents a client in connection with an official
hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyer's
client is presenting evidence or argument. It does not apply to representation of a client in a negotiation
or other bilateral transaction with a governmental agency or in connection with an application for a
license or other privilege or the client's compliance with generally applicable reporting requirements,
such as the filing of income-tax returns. Nor does it apply to the representation of a client in connection
with an investigation or examination of the client's affairs conducted by government investigators or
examiners. Representation in such matters is governed by Rules 4.1 through 4.4.

SCR 20:3.10 Omitted.
TRANSACTIONS WITH PERSONS
OTHER THAN CLIENTS
SCR 20:4.1 Truthfulness in statements to others
(a) In the course of representing a client a lawyer shall not
knowingly:
(1) make a false statement of a material fact or law to a 3rd person;
or
(2) fail to disclose a material fact to a 3rd person when disclosure
is necessary to avoid assisting a criminal or fraudulent act by a client,
unless disclosure is prohibited by SCR 20:1.6.
(b) Notwithstanding par. (a), SCR 20:5.3(c)(1), and SCR 20:8.4, a
lawyer may advise or supervise others with respect to lawful investigative
activities.
WISCONSIN COMMITTEE COMMENT
Paragraph (b) has no counterpart in the Model Rule. As a general matter, a lawyer may advise
a client concerning whether proposed conduct is lawful. See SCR 20:1.2(d). This is allowed even in
circumstances in which the conduct involves some form of deception, for example the use of testers
to investigate unlawful discrimination or the use of undercover detectives to investigate theft in the
workplace. When the lawyer personally participates in the deception, however, serious questions arise.
See SCR 20:8.4(c). Paragraph (b) recognizes that, where the law expressly permits it, lawyers may
have limited involvement in certain investigative activities involving deception.
Lawful investigative activity may involve a lawyer as an advisor or supervisor only when the
lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is
taking place or will take place in the foreseeable future.

ABA COMMENT

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Misrepresentation
[1] A lawyer is required to be truthful when dealing with others on a client's behalf, but
generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation
can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is
false. Misrepresentations can also occur by partially true but misleading statements or omissions that
are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false
statement or for misrepresentations by a lawyer other than in the course of representing a client, see
Rule 8.4.
Statements of Fact
[2] This Rule refers to statements of fact. Whether a particular statement should be regarded
as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation,
certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or
value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a
claim are ordinarily in this category, and so is the existence of an undisclosed principal except where
nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations
under applicable law to avoid criminal and tortious misrepresentation.
Crime or Fraud by Client
[3] Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct
that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the
principle set forth in Rule 1.2(d) and addresses the situation where a client's crime or fraud takes the
form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client's crime or fraud by
withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of
the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases,
substantive law may require a lawyer to disclose information relating to the representation to avoid
being deemed to have assisted the client's crime or fraud. If the lawyer can avoid assisting a client's
crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to
do so, unless the disclosure is prohibited by Rule 1.6.

SCR 20:4.2 Communication with person represented by
counsel
(a)In representing a client, a lawyer shall not communicate about
the subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so by law or a court
order.
(b) An otherwise unrepresented party to whom limited scope
representation is being provided or has been provided in accordance with
SCR 20:1.2(c) is considered to be unrepresented for purposes of this rule
unless the lawyer providing limited scope representation notifies the
opposing lawyer otherwise.

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ABA COMMENT
[1] This Rule contributes to the proper functioning of the legal system by protecting a person
who has chosen to be represented by a lawyer in a matter against possible overreaching by other
lawyers who are participating in the matter, interference by those lawyers with the client-lawyer
relationship and the uncounselled disclosure of information relating to the representation.
[2] This Rule applies to communications with any person who is represented by counsel
concerning the matter to which the communication relates.
[3] The Rule applies even though the represented person initiates or consents to the
communication. A lawyer must immediately terminate communication with a person if, after
commencing communication, the lawyer learns that the person is one with whom communication is
not permitted by this Rule.
[4] This Rule does not prohibit communication with a represented person, or an employee or
agent of such a person, concerning matters outside the representation. For example, the existence of a
controversy between a government agency and a private party, or between two organizations, does not
prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding
a separate matter. Nor does this Rule preclude communication with a represented person who is
seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may
not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties
to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a
client concerning a communication that the client is legally entitled to make. Also, a lawyer having
independent justification or legal authorization for communicating with a represented person is
permitted to do so.
[5] Communications authorized by law may include communications by a lawyer on behalf
of a client who is exercising a constitutional or other legal right to communicate with the government.
Communications authorized by law may also include investigative activities of lawyers representing
governmental entities, directly or through investigative agents, prior to the commencement of criminal
or civil enforcement proceedings. When communicating with the accused in a criminal matter, a
government lawyer must comply with this Rule in addition to honoring the constitutional rights of the
accused. The fact that a communication does not violate a state or federal constitutional right is
insufficient to establish that the communication is permissible under this Rule.
[6] A lawyer who is uncertain whether a communication with a represented person is
permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances
to authorize a communication that would otherwise be prohibited by this Rule, for example, where
communication with a person represented by counsel is necessary to avoid reasonably certain injury.
[7] In the case of a represented organization, this Rule prohibits communications with a
constituent of the organization who supervises, directs or regularly consults with the organization's
lawyer concerning the matter or has authority to obligate the organization with respect to the matter or
whose act or omission in connection with the matter may be imputed to the organization for purposes
of civil or criminal liability. Consent of the organization's lawyer is not required for communication
with a former constituent. If a constituent of the organization is represented in the matter by his or her
own counsel, the consent by that counsel to a communication will be sufficient for purposes of this
Rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization,
a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization.
See Rule 4.4.
[8] The prohibition on communications with a represented person only applies in
circumstances where the lawyer knows that the person is in fact represented in the matter to be
discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such

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actual knowledge may be inferred from the circumstances. See Rule 1.0(f). Thus, the lawyer cannot
evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
[9] In the event the person with whom the lawyer communicates is not known to be
represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3.

SCR 20:4.3 Dealing with unrepresented person
(a) In dealing on behalf of a client with a person who is not
represented by counsel, a lawyer shall inform such person of
the lawyer's role in the matter. When the lawyer knows or
reasonably should know that the unrepresented person
misunderstands the lawyer's role in the matter, the lawyer shall
make reasonable efforts to correct the misunderstanding. The
lawyer shall not give legal advice to an unrepresented person,
other than the advice to secure counsel, if the lawyer knows or
reasonably should know that the interests of such a person are
or have a reasonable possibility of being in conflict with the
interests of the client.
(b) An otherwise unrepresented party to whom limited scope
representation is being provided or has been provided in
accordance with SCR 20.1.2(c) is considered to be
unrepresented for purposes of this rule unless the lawyer
providing limited scope representation notifies the opposing
lawyer otherwise.
WISCONSIN COMMENT
A municipal prosecutor's obligations under this rule should be read in conjunction with SCR
20:3.8(d) and (f).

WISCONSIN COMMITTEE COMMENT
This Wisconsin Supreme Court Rule differs from the Model Rule in requiring lawyers to
inform unrepresented persons of the lawyer's role in the matter, whereas the Model Rule requires only
that the lawyer not state or imply that the lawyer is disinterested. A similar obligation to clarify the
lawyer's role is expressed in SCR 20:1.13(f), SCR 20:2.4, SCR 20:3.8(b), and SCR 20:4.1.

ABA COMMENT
[1] An unrepresented person, particularly one not experienced in dealing with legal matters,
might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even
when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically need
to identify the lawyer's client and, where necessary, explain that the client has interests opposed to

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those of the unrepresented person. For misunderstandings that sometimes arise when a lawyer for an
organization deals with an unrepresented constituent, see Rule 1.13(f).
[2] The Rule distinguishes between situations involving unrepresented persons whose
interests may be adverse to those of the lawyer's client and those in which the person's interests are not
in conflict with the client's. In the former situation, the possibility that the lawyer will compromise the
unrepresented person's interests is so great that the Rule prohibits the giving of any advice, apart from
the advice to obtain counsel. Whether a lawyer is giving impermissible advice may depend on the
experience and sophistication of the unrepresented person, as well as the setting in which the behavior
and comments occur. This Rule does not prohibit a lawyer from negotiating the terms of a transaction
or settling a dispute with an unrepresented person. So long as the lawyer has explained that the lawyer
represents an adverse party and is not representing the person, the lawyer may inform the person of
the terms on which the lawyer's client will enter into an agreement or settle a matter, prepare documents
that require the person's signature and explain the lawyer's own view of the meaning of the document
or the lawyer's view of the underlying legal obligations.

SCR 20:4.4 Respect for rights of 3rd persons
(a) In representing a client, a lawyer shall not use means that have
no substantial purpose other than to embarrass, delay, or burden a 3rd
person, or use methods of obtaining evidence that violate the legal rights
of such a person.
(b) A lawyer who receives a document or electronically stored
information relating to the representation of the lawyer's client and knows
or reasonably should know that the document or electronically stored
information was inadvertently sent shall promptly notify the sender.
(c) A lawyer who receives a document or electronically stored
information relating to the representation of the lawyer's client and knows
or reasonably should know that the document or electronically stored
information contains information protected by the lawyer-client privilege
or the work product rule and has been disclosed to the lawyer
inadvertently shall:
(1) immediately terminate review or use of the document or
electronically stored information;
(2) promptly notify the person or the person's lawyer if
communication with the person is prohibited by SCR 20:4.2 of the
inadvertent disclosure; and
(3) abide by that person's or lawyer's instructions with respect to
disposition of the document or electronically stored information until
obtaining a definitive ruling on the proper disposition from a court with
appropriate jurisdiction.
WISCONSIN COMMENT
This Rule, unlike its Model Rule counterpart, contains paragraph (c), which

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specifically applies to information protected by the lawyer-client privilege and the work product rule.
If a lawyer knows that the document or electronically stored information contains information
protected by the lawyer-client privilege or the work product rule and has been disclosed to the lawyer
inadvertently, then this Rule requires the lawyer to immediately terminate review or use of the
document or electronically stored information, promptly notify the person or the person's lawyer if
communication with the person is prohibited by SCR 20:4.2 of the inadvertent disclosure, and abide
by that person's or lawyer's instructions with respect to disposition of the document or electronically
stored information until obtaining a definitive ruling on the proper disposition from a court with
appropriate jurisdiction.
Due to substantive and numbering differences, special care should be taken in consulting the
ABA Comment.

ABA COMMENT
[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those
of the client, but that responsibility does not imply that a lawyer may disregard the rights of third
persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of
obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such
as the client-lawyer relationship.
[2] Paragraph (b) recognizes that lawyers sometimes receive a document or electronically
stored information that was mistakenly sent or produced by opposing parties or their lawyers. A
document or electronically stored information is inadvertently sent when it is accidently transmitted,
such as when an email or letter is misaddressed or a document or electronically stored information is
accidentally included with information that was intentionally transmitted. If a lawyer knows or
reasonably should know that such a document or electronically stored information was sent
inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that
person to take protective measures. Whether the lawyer is required to take additional steps, such as
returning the original document or electronically stored information, is a matter of law beyond the
scope of these Rules, as is the question of whether the privileged status of a document or electronically
stored information has been waived. Similarly, this Rule does not address the legal duties of a lawyer
who receives a document or electronically stored information that the lawyer knows or reasonably
should know may have been inappropriately obtained by the sending person. For purposes of this Rule,
"document or electronically stored information" includes, in addition to paper documents, email or
other forms of electronically stored information, including embedded data (commonly referred to as
"metadata"), that is subject to being read or put into readable form. Metadata in electronic documents
creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know
that the metadata was inadvertently sent to the receiving lawyer.
[3] Some lawyers may choose to return a document or delete electronically stored information
unread, for example, when the lawyer learns before receiving it that it was inadvertently sent. Where
a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document
or delete electronically stored information is a matter of professional judgment ordinarily reserved to
the lawyer. See Rules 1.2 and 1.4.

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SCR 20:4.5 Guardians ad litem
A lawyer appointed to act as a guardian ad litem or as an attorney
for the best interests of an individual represents, and shall act in, the
individual's best interests, even if doing so is contrary to the individual's
wishes. A lawyer so appointed shall comply with the Rules of
Professional Conduct that are consistent with the lawyer's role in
representing the best interests of the individual rather than the individual
personally.
WISCONSIN COMMENT
The Model Rules do not contain a counterpart provision. This rule reflects established case
law that a guardian ad litem in Wisconsin is a lawyer who represents the best interests of an individual,
not the individual personally. See Paige K.B. v. Molepske, 219 Wis. 2d 418, 580 N.W.2d 289 (1998);
In re Steveon R.A., 196 Wis. 2d 171, 537 N.W.2d 142 (Ct. App. 1995). Supreme Court Rules,
Chapters 35—36, govern eligibility for appointment as guardian ad litem in certain situations.
This rule expressly recognizes that a lawyer who represents the best interests of the individual
does not have a client in the traditional sense but must comply with the Rules of Professional Conduct
to the extent the rules apply.

LAW FIRMS AND ASSOCIATIONS
SCR 20:5.1 Responsibilities of partners, managers, and
supervisory lawyers
(a) A partner in a law firm, and a lawyer who individually or
together with other lawyers possesses comparable managerial authority
in a law firm, shall make reasonable efforts to ensure that the firm has in
effect measures giving reasonable assurance that all lawyers in the firm
conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another
lawyer shall make reasonable efforts to ensure that the other lawyer
conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of
the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct,
ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority
in the law firm in which the other lawyer practices, or has direct
supervisory authority over the other lawyer, and knows of the conduct at
a time when its consequences can be avoided or mitigated but fails to take
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reasonable remedial action.
ABA COMMENT
[1] Paragraph (a) applies to lawyers who have managerial authority over the professional
work of a firm. See Rule 1.0(c). This includes members of a partnership, the shareholders in a law firm
organized as a professional corporation, and members of other associations authorized to practice law;
lawyers having comparable managerial authority in a legal services organization or a law department
of an enterprise or government agency; and lawyers who have intermediate managerial responsibilities
in a firm. Paragraph (b) applies to lawyers who have supervisory authority over the work of other
lawyers in a firm.
[2] Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable
efforts to establish internal policies and procedures designed to provide reasonable assurance that all
lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures
include those designed to detect and resolve conflicts of interest, identify dates by which actions must
be taken in pending matters, account for client funds and property and ensure that inexperienced
lawyers are properly supervised.
[3] Other measures that may be required to fulfill the responsibility prescribed in paragraph
(a) can depend on the firm's structure and the nature of its practice. In a small firm of experienced
lawyers, informal supervision and periodic review of compliance with the required systems ordinarily
will suffice. In a large firm, or in practice situations in which difficult ethical problems frequently arise,
more elaborate measures may be necessary. Some firms, for example, have a procedure whereby junior
lawyers can make confidential referral of ethical problems directly to a designated senior partner or
special committee. See Rule 5.2. Firms, whether large or small, may also rely on continuing legal
education in professional ethics. In any event, the ethical atmosphere of a firm can influence the
conduct of all its members and the partners may not assume that all lawyers associated with the firm
will inevitably conform to the Rules.
[4] Paragraph (c) expresses a general principle of personal responsibility for acts of another.
See also Rule 8.4(a).
[5] Paragraph (c)(2) defines the duty of a partner or other lawyer having comparable
managerial authority in a law firm, as well as a lawyer who has direct supervisory authority over
performance of specific legal work by another lawyer. Whether a lawyer has supervisory authority in
particular circumstances is a question of fact. Partners and lawyers with comparable authority have at
least indirect responsibility for all work being done by the firm, while a partner or manager in charge
of a particular matter ordinarily also has supervisory responsibility for the work of other firm lawyers
engaged in the matter. Appropriate remedial action by a partner or managing lawyer would depend on
the immediacy of that lawyer's involvement and the seriousness of the misconduct. A supervisor is
required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that
the misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented a
matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to
correct the resulting misapprehension.
[6] Professional misconduct by a lawyer under supervision could reveal a violation of
paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation of
paragraph (c) because there was no direction, ratification or knowledge of the violation.
[7] Apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the
conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or criminally for
another lawyer's conduct is a question of law beyond the scope of these Rules.
[8] The duties imposed by this Rule on managing and supervising lawyers do not alter the
personal duty of each lawyer in a firm to abide by the Rules of Professional Conduct. See Rule 5.2(a).

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SCR 20:5.2 Responsibilities of a subordinate lawyer
(a) A lawyer is bound by the Rules of Professional Conduct
notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional
Conduct if that lawyer acts in accordance with a supervisory lawyer's
reasonable resolution of an arguable question of professional duty.
ABA COMMENT
[1] Although a lawyer is not relieved of responsibility for a violation by the fact that the
lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer
had the knowledge required to render conduct a violation of the Rules. For example, if a subordinate
filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a
professional violation unless the subordinate knew of the document's frivolous character.
[2] When lawyers in a supervisor-subordinate relationship encounter a matter involving
professional judgment as to ethical duty, the supervisor may assume responsibility for making the
judgment. Otherwise a consistent course of action or position could not be taken. If the question can
reasonably be answered only one way, the duty of both lawyers is clear and they are equally
responsible for fulfilling it. However, if the question is reasonably arguable, someone has to decide
upon the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may
be guided accordingly. For example, if a question arises whether the interests of two clients conflict
under Rule 1.7, the supervisor's reasonable resolution of the question should protect the subordinate
professionally if the resolution is subsequently challenged.

SCR 20:5.3 Responsibilities regarding nonlawyer assistance
With respect to a nonlawyer employed or retained by or associated
with a lawyer:
(a) a partner, and a lawyer who individually or together with other
lawyers possesses comparable managerial authority in a law firm shall
make reasonable efforts to ensure that the firm has in effect measures
giving reasonable assurance that the person's conduct is compatible with
the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the
nonlawyer shall make reasonable efforts to ensure that the person's
conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that
would be a violation of the Rules of Professional Conduct if engaged in
by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific
conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority

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in the law firm in which the person is employed, or has direct supervisory
authority over the person, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable
remedial action.
ABA COMMENT
[1] Paragraph (a) requires lawyers with managerial authority within a law firm to make
reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that
nonlawyers in the firm and nonlawyers outside the firm who work on firm matters act in a way
compatible with the professional obligations of the lawyer. See Comment [6] to Rule 1.1 (retaining
lawyers outside the firm) and Comment [1] to Rule 5.1 (responsibilities with respect to lawyers within
a firm). Paragraph (b) applies to lawyers who have supervisory authority over such nonlawyers within
or outside the firm. Paragraph (c) specifies the circumstances in which a lawyer is responsible for the
conduct of such nonlawyers inside or outside the firm that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer.
[2] Lawyers generally employ assistants in their practice, including secretaries, investigators,
law student interns, and paraprofessionals. Such assistants, whether employees or independent
contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give
such assistants appropriate instruction and supervision concerning the ethical aspects of their
employment, particularly regarding the obligation not to disclose information relating to representation
of the client, and should be responsible for their work product. The measures employed in supervising
nonlawyers should take account of the fact that they do not have legal training and are not subject to
professional discipline.
[3] A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal
services to the client. Examples include the retention of an investigative or paraprofessional service,
hiring a document management company to create and maintain a database for complex litigation,
sending client documents to a third party for printing or scanning, and using an Internet-based service
to store client information. When using such services outside the firm, a lawyer must make reasonable
efforts to ensure that the services are provided in a manner that is compatible with the lawyer's
professional obligations. The extent of this obligation will depend upon the circumstances, including
the education, experience and reputation of the nonlawyer; the nature of the services involved; the
terms of any arrangements concerning the protection of client information; and the legal and ethical
environments of the jurisdictions in which the services will be performed, particularly with regard to
confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication
with client), 1.6 (confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a)
(unauthorized practice of law). When retaining or directing a nonlawyer outside the firm, a lawyer
should communicate directions appropriate under the circumstances to give reasonable assurance that
the nonlawyer's conduct is compatible with the professional obligations of the lawyer.
[4] Where the client directs the selection of a particular nonlawyer service provider outside
the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility
for monitoring as between the client and the lawyer. See Rule 1.2. When making such an allocation
in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a
matter of law beyond the scope of these Rules.

SCR 20:5.4 Professional independence of a lawyer

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(a) A lawyer or law firm shall not share legal fees with a
nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or
associate may provide for the payment of money, over a reasonable
period of time after the lawyer's death, to the lawyer's estate or to one or
more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or
disappeared lawyer may, pursuant to the provisions of SCR 20:1.17, pay
to the estate or other representative of that lawyer the agreed-upon
purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a
compensation or retirement plan, even though the plan is based in whole
or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit
organization that employed, retained or recommended employment of the
lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any
of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs,
or pays the lawyer to render legal services for another to direct or regulate
the lawyer's professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional
corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary
representative of the estate of a lawyer may hold the stock or interest of
the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or
occupies the position of similar responsibility in any form of association
other than a corporation; or
(3) a nonlawyer has the right to direct or control the professional
judgment of a lawyer.
ABA COMMENT
[1] The provisions of this Rule express traditional limitations on sharing fees. These
limitations are to protect the lawyer's professional independence of judgment. Where someone other
than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that
arrangement does not modify the lawyer's obligation to the client. As stated in paragraph (c), such
arrangements should not interfere with the lawyer's professional judgment.
[2] This Rule also expresses traditional limitations on permitting a third party to direct or
regulate the lawyer's professional judgment in rendering legal services to another. See also Rule 1.8(f)

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(lawyer may accept compensation from a third party as long as there is no interference with the lawyer's
independent professional judgment and the client gives informed consent).

SCR 20:5.5 Unauthorized practice of law; multijurisdictional
practice of law
(a) A lawyer shall not:
(1) practice law in a jurisdiction where doing so violates the
regulation of the legal profession in that jurisdiction except that a lawyer
admitted to practice in Wisconsin does not violate this rule by conduct in
another jurisdiction that is permitted in Wisconsin under SCR 20:5.5 (c)
and (d) for lawyers not admitted in Wisconsin; or
(2) assist another in practicing law in a jurisdiction where doing so
violates the regulation of the legal profession in that jurisdiction.
(b) A lawyer who is not admitted to practice in this jurisdiction
shall not:
(1) except as authorized by this rule or other law, establish an
office or maintain a systematic and continuous presence in this
jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer
is admitted to the practice of law in this jurisdiction.
(c) Except as authorized by this rule, a lawyer who is not admitted
to practice in this jurisdiction but who is admitted to practice in another
jurisdiction of the United States and not disbarred or suspended from
practice in any jurisdiction for disciplinary reasons or for medical
incapacity, may not provide legal services in this jurisdiction except when
providing services on an occasional basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to
practice in this jurisdiction and who actively participates in the matter; or
(2) are in, or reasonably related to, a pending or potential
proceeding before a tribunal in this or another jurisdiction, if the lawyer,
or a person the lawyer is assisting, is authorized by law or order to appear
in such proceeding or reasonably expects to be so authorized; or
(3) are in, or reasonably related to, a pending or potential
arbitration, mediation, or other alternative dispute resolution proceeding
in this or another jurisdiction, if the services arise out of, or are reasonably
related to, the lawyer's practice in a jurisdiction in which the lawyer is
admitted to practice and are not services for which the forum requires pro
hac vice admission; or
(4) are not within subsections (c)(2) or (c)(3) and arise out of, or
are reasonably related to, the lawyer's practice in a jurisdiction in which
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the lawyer is admitted to practice.
(d) A lawyer admitted to practice in another United States
jurisdiction or in a foreign jurisdiction, who is not disbarred or suspended
from practice in any jurisdiction for disciplinary reasons or medical
incapacity, may provide legal services through an office or other
systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational
affiliates after compliance with SCR 10.03 (4) (f), and are not services
for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized to provide by federal
law or other law or other rule of this jurisdiction.
(e) A lawyer admitted to practice in another jurisdiction of the
United States or a foreign jurisdiction who provides legal services in this
jurisdiction pursuant to sub. (c) and (d) above shall consent to the
appointment of the Clerk of the Wisconsin Supreme Court as agent upon
whom service of process may be made for all actions against the lawyer
or the lawyer's firm that may arise out of the lawyer's participation in legal
matters in this jurisdiction.
WISCONSIN COMMITTEE COMMENT
See also SCR 10.03(4) (requirements for admission pro hac vice and registration of in-house
counsel).
This Wisconsin Supreme Court Rule differs from the Model Rule in that an attorney is not
precluded from seeking admission pro hac vice if the attorney is administratively suspended from
practice in a jurisdiction other than the attorney's primary jurisdiction of practice. An attorney must
not be suspended or disbarred in his or her primary jurisdiction of practice. Due to substantive and
numbering differences, special care should be taken in consulting the ABA Comment.

ABA COMMENT
[1] A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to
practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be
authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis.
Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer's direct
action or by the lawyer assisting another person. For example, a lawyer may not assist a person in
practicing law in violation of the rules governing professional conduct in that person's jurisdiction.
[2] The definition of the practice of law is established by law and varies from one jurisdiction
to another. Whatever the definition, limiting the practice of law to members of the bar protects the
public against rendition of legal services by unqualified persons. This Rule does not prohibit a lawyer
from employing the services of paraprofessionals and delegating functions to them, so long as the
lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.
[3] A lawyer may provide professional advice and instruction to nonlawyers whose
employment requires knowledge of the law; for example, claims adjusters, employees of financial or

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commercial institutions, social workers, accountants and persons employed in government agencies.
Lawyers also may assist independent nonlawyers, such as paraprofessionals, who are authorized by
the law of a jurisdiction to provide particular law-related services. In addition, a lawyer may counsel
nonlawyers who wish to proceed pro se.
[4] Other than as authorized by law or this Rule, a lawyer who is not admitted to practice
generally in this jurisdiction violates paragraph (b) (1) if the lawyer establishes an office or other
systematic and continuous presence in this jurisdiction for the practice of law. Presence may be
systematic and continuous even if the lawyer is not physically present here. Such a lawyer must not
hold out to the public or otherwise represent that the lawyer is admitted to practice law in this
jurisdiction. See also Rules 7.1(a) and 7.5(b).
[5] There are occasions in which a lawyer admitted to practice in another United States
jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal
services on a temporary basis in this jurisdiction under circumstances that do not create an
unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c) identifies four
such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is
not authorized. With the exception of paragraphs (d)(1) and (d)(2), this Rule does not authorize a
lawyer to establish an office or other systematic and continuous presence in this jurisdiction without
being admitted to practice generally here.
[6] There is no single test to determine whether a lawyer's services are provided on a
"temporary basis" in this jurisdiction, and may therefore be permissible under paragraph (c). Services
may be "temporary" even though the lawyer provides services in this jurisdiction on a recurring basis,
or for an extended period of time, as when the lawyer is representing a client in a single lengthy
negotiation or litigation.
[7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any United
States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth
of the United States. The word "admitted" in paragraph (c) contemplates that the lawyer is authorized
to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who while
technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.
[8] Paragraph (c)(1) recognizes that the interests of clients and the public are protected if a
lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this
jurisdiction. For this paragraph to apply, however, the lawyer admitted to practice in this jurisdiction
must actively participate in and share responsibility for the representation of the client.
[9] Lawyers not admitted to practice generally in a jurisdiction may be authorized by law or
order of a tribunal or an administrative agency to appear before the tribunal or agency. This authority
may be granted pursuant to formal rules governing admission pro hac vice or pursuant to informal
practice of the tribunal or agency. Under paragraph (c)(2), a lawyer does not violate this Rule when
the lawyer appears before a tribunal or agency pursuant to such authority. To the extent that a court
rule or other law of this jurisdiction requires a lawyer who is not admitted to practice in this jurisdiction
to obtain admission pro hac vice before appearing before a tribunal or administrative agency, this Rule
requires the lawyer to obtain that authority.
[10] Paragraph (c)(2) also provides that a lawyer rendering services in this jurisdiction on a
temporary basis does not violate this Rule when the lawyer engages in conduct in anticipation of a
proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which
the lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct include meetings
with the client, interviews of potential witnesses, and the review of documents. Similarly, a lawyer
admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in
connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects
to be authorized to appear, including taking depositions in this jurisdiction.
[11] When a lawyer has been or reasonably expects to be admitted to appear before a court
or administrative agency, paragraph (c)(2) also permits conduct by lawyers who are associated with

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that lawyer in the matter, but who do not expect to appear before the court or administrative agency.
For example, subordinate lawyers may conduct research, review documents, and attend meetings with
witnesses in support of the lawyer responsible for the litigation.
[12] Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction to
perform services on a temporary basis in this jurisdiction if those services are in or reasonably related
to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in
this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice
in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain
admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court
rules or law so require.
[13] Paragraph (c)(4) permits a lawyer admitted in another jurisdiction to provide certain
legal services on a temporary basis in this jurisdiction that arise out of or are reasonably related to the
lawyer's practice in a jurisdiction in which the lawyer is admitted but are not within paragraphs (c)(2)
or (c)(3). These services include both legal services and services that nonlawyers may perform but that
are considered the practice of law when performed by lawyers.
[14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related
to the lawyer's practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence
such a relationship. The lawyer's client may have been previously represented by the lawyer, or may
be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The
matter, although involving other jurisdictions, may have a significant connection with that jurisdiction.
In other cases, significant aspects of the lawyer's work might be conducted in that jurisdiction or a
significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship
might arise when the client's activities or the legal issues involve multiple jurisdictions, such as when
the officers of a multinational corporation survey potential business sites and seek the services of their
lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer's
recognized expertise developed through the regular practice of law on behalf of clients in matters
involving a particular body of federal, nationally-uniform, foreign, or international law. Lawyers
desiring to provide pro bono legal services on a temporary basis in a jurisdiction that has been affected
by a major disaster, but in which they are not otherwise authorized to practice law, as well as lawyers
from the affected jurisdiction who seek to practice law temporarily in another jurisdiction, but in which
they are not otherwise authorized to practice law, should consult the [Model Court Rule on Provision
of Legal Services Following Determination of Major Disaster].
[15] Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice
in another United States jurisdiction, and is not disbarred or suspended from practice in any
jurisdiction, may establish an office or other systematic and continuous presence in this jurisdiction
for the practice of law as well as provide legal services on a temporary basis. Except as provided in
paragraphs (d)(1) and (d)(2), a lawyer who is admitted to practice law in another jurisdiction and who
establishes an office or other systematic or continuous presence in this jurisdiction must become
admitted to practice law generally in this jurisdiction.
[16] Paragraph (d)(1) applies to a lawyer who is employed by a client to provide legal services
to the client or its organizational affiliates, i.e., entities that control, are controlled by, or are under
common control with the employer. This paragraph does not authorize the provision of personal legal
services to the employer's officers or employees. The paragraph applies to in-house corporate lawyers,
government lawyers and others who are employed to render legal services to the employer. The
lawyer's ability to represent the employer outside the jurisdiction in which the lawyer is licensed
generally serves the interests of the employer and does not create an unreasonable risk to the client and
others because the employer is well situated to assess the lawyer's qualifications and the quality of the
lawyer's work.
[17] If an employed lawyer establishes an office or other systematic presence in this
jurisdiction for the purpose of rendering legal services to the employer, the lawyer may be subject to

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registration or other requirements, including assessments for client protection funds and mandatory
continuing legal education.
[18] Paragraph (d)(2) recognizes that a lawyer may provide legal services in a jurisdiction in
which the lawyer is not licensed when authorized to do so by federal or other law, which includes
statute, court rule, executive regulation or judicial precedent. See, e.g., The ABA Model Rule on
Practice Pending Admission.
[19] A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) or
otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a).
[20] In some circumstances, a lawyer who practices law in this jurisdiction pursuant to
paragraphs (c) or (d) may have to inform the client that the lawyer is not licensed to practice law in
this jurisdiction. For example, that may be required when the representation occurs primarily in this
jurisdiction and requires knowledge of the law of this jurisdiction. See Rule 1.4(b).
[21] Paragraphs (c) and (d) do not authorize communications advertising legal services in this
jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers
may communicate the availability of their services in this jurisdiction is governed by Rules 7.1 to 7.5.

WISCONSIN COMMENT
Lawyers desiring to provide pro bono legal services on a temporary basis in the State of Wisconsin
when it has been affected by a major disaster, when they are not otherwise authorized to practice
law in the State of Wisconsin, as well as lawyers from a jurisdiction affected by a major disaster
who seek to practice law temporarily in this jurisdiction, but who are not otherwise authorized to
practice law in the State o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aho-chunk%3Ad722d3c3944a9a5a. Public record. Not legal advice.