Final touches put on new ethics rules by WI Supreme Court.

Byline: David Ziemer

The Wisconsin Supreme Court on Oct. 25 finalized its new ethics rules -- almost. A number of matters were put over until December in order to rewrite certain provisions, but substantively, the work is finished (save for the trust account rules; see article on this page.). On March 15 of this year, the court issued proposed rules, and gave the public the opportunity to comment, but very few changes were made in response to the comments. The "insurance defense" exemption -- allowing insurance defense attorneys to represent insureds without obtaining informed consent -- was retained in substance, but the final language is still being considered. Many objected to proposed Rule 20:1.5 for not requiring that all fee agreements be in writing, but the court ultimately stuck with its prior decision to not require that; unless it is expected that the fee will exceed $1,000, no written agreement is required. Final wording on the Wisconsin Committee Comment to the rule was held open, however. At issue is the difference between a "retainer" and an "advance fee." A retainer is nonrefundable and may be deposited directly into an attorney's or firm's operating account, while an advance fee must remain in the trust account to be drawn down as work is performed. However, Justice Patience Drake Roggensack expressed concern that many attorneys use the term "retainer" to refer to what is actually an "advance fee," so the final wording of the comment is still being considered, with the goal of drafting a comment that minimizes any confusion regarding the difference. Rule 20:3.8 -- Special responsibilities of a prosecutor -- will be slightly revised from the March 15 draft. As drafted, the rule...