Thursday, October 29, 2020

Ethics Of "Standby" Counsel

The Wisconsin Supreme Court imposed a 60-day suspension of an attorney for ethical lapses in two client matters.

One set of charges dealt with his role as "standby" counsel

With respect to Attorney Anderson's representation of J.H., the referee noted that Attorney Anderson was appointed standby counsel only, and she pointed out Wisconsin has not specifically addressed the issue of whether standby counsel owes an ethical obligation to the defendant he or she is assisting. The referee said it seems logical that a limited attorney-client relationship was formed when J.H. asked Attorney Anderson to perform certain tasks and when the circuit court asked Attorney Anderson to be prepared to take over J.H.'s defense at trial if requested to do so. The referee reasoned that in order to accomplish those tasks, Attorney Anderson would have to act with diligence so that he could be informed about the case prior to trial and communicate with J.H. about the tasks that were requested.

The referee found that Attorney Anderson did not violate Supreme Court Rules when he failed to inform J.H. about how to subpoena witnesses or when he failed to send additional discovery documents to J.H. since those discovery documents were already in J.H.'s possession and there was no evidence presented indicating the documents were important to help J.H. prepare his case for trial. The referee said that J.H. had already received discovery from prior counsel, who had prepared the case for trial before having to withdraw. The referee also noted that J.H. had received a complete set of discovery at the pretrial conference.

The referee found a failure to communicate with both clients including J.H.

We adopt the referee's findings of fact and conclusions of law as to Attorney Anderson's professional misconduct. As to the appropriate sanction, we conclude that a 60-day suspension, rather than the 30-day suspension recommended by the referee, is an appropriate sanction.

(Mike Frisch)

Bar Discipline & Process | Permalink


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