“Consult First, Act Later” – Wisconsin Affirms the Attorney’s Duty to Communicate Directly with Adjudged-Incompetent Clients
(Office of Lawyer Regulation v. Thomas L. Frenn, 2025 WI ___)

Introduction

In Office of Lawyer Regulation v. Thomas L. Frenn, the Wisconsin Supreme Court accepted the referee’s recommendation that an attorney who totally bypassed direct client contact for four and a half months—despite the client’s adjudicated incompetency—violated Supreme Court Rule (SCR) 20:1.14(a).

While the case is formally a disciplinary matter resulting in a private reprimand, it sets a clear, forward-looking precedent: adjudication of incompetence does not extinguish an attorney’s obligation, “as far as reasonably possible,” to maintain a normal lawyer–client relationship—including personal communication—before taking significant action on the client’s behalf. The decision clarifies a grey zone that often arises in guardianship, elder-law, and disability contexts and will resonate well beyond Wisconsin’s borders.

Summary of the Judgment

• Facts. Attorney Thomas L. Frenn was retained, via a power of attorney (POA) granted to the client’s daughter, to represent Patricia Skiera in proceedings involving sibling disputes, guardianship, and financial recovery. Without personally contacting Skiera, Frenn attended mediation, executed a settlement agreement, and later represented her in arbitration.
• Allegation. One disciplinary count: failure to comply with SCR 20:1.14(a) by not communicating with a client of diminished capacity.
• Procedural posture. Cross-motions—Frenn to dismiss; Office of Lawyer Regulation (OLR) for judgment on the pleadings. Referee Charles H. Barr sided with OLR, finding a violation as a matter of law; the Supreme Court adopted that conclusion.
• Holding. Even when a client has been adjudged incompetent and has a legal representative, the lawyer must attempt direct consultation prior to material representation activities unless such consultation is not reasonably possible. Frenn’s four-month silence breached that duty.
• Sanction. Private reprimand and full costs, influenced by mitigating factors (no prior discipline, beneficial outcome for the client) and tempered by aggravators (vulnerability of client, lack of acknowledgement of wrongdoing, long practice experience).

Analysis

1. Precedents and Authorities Cited

Although the formal opinion is concise, it imports several sources of guidance:

2. Court’s Legal Reasoning

1. Textual approach. The decisive language is “as far as reasonably possible, maintain a normal client-lawyer relationship.” The court read “normal” as necessarily including direct contact unless truly impossible.
2. Rejecting a “bright-line incompetency exemption.” Frenn argued that once a court adjudges incompetence, duties shift entirely to the guardian/agent. The court called that “simplistic.” Competency exists on a spectrum; many adjudged incompetent clients can still comprehend and express preferences.
3. Harmonising Comments [2] and [4]. While Comment [4] endorses reliance on a legal representative, Comment [2] requires continued client engagement “as far as possible.” The court construed them as cumulative, not alternative.
4. Policy dimension. Direct consultation safeguards the client’s autonomy and prevents “surprise disapproval” after irreversible legal moves—exactly the risk highlighted by the referee.
5. Application to facts. Four-and-a-half months with zero contact—during which mediation and arbitration occurred—is simply not a “reasonable effort.” Post-hoc consultation cannot cure the breach.

3. Impact of the Decision

• Standard-setting. Wisconsin now offers explicit guidance: lawyers must document meaningful attempts at personal communication with clients who have diminished or even adjudged-incompetent capacity.
• Practitioner workflow. Elder-law, probate, special-needs, and mental-health practitioners must adapt engagement letters, time budgets, and internal checklists to:
  • Initiate early, documented efforts to meet or speak with the client,
  • Assess current capacity continuously (in-person or via video if needed), and
  • Record why direct contact was impossible if that becomes the case.
• Guardianship litigation. Attorneys serving as GALs (guardian ad litem) or adversary counsel may now face heightened scrutiny if they skip direct visits on the assumption that the ward “wouldn’t understand.”
• Disciplinary baseline. The decision signals that even first-time offenders risk public (or at least private) discipline for seemingly “administrative” lapses when vulnerable clients are involved.
• Persuasive authority elsewhere. Because SCR 20 mirrors ABA Rule 1.14, other jurisdictions may cite this case when facing similar fact patterns.

Complex Concepts Simplified

• Diminished Capacity vs. Incompetence.
  • Diminished capacity: any impairment—temporary or chronic—affecting decision-making.
  • Adjudicated incompetence: a court finding that the individual cannot manage personal or financial affairs, usually prompting appointment of a guardian.
  The judgment clarifies that Rule 1.14 duties apply in both scenarios, though the steps to satisfy them can differ.
• “Normal client–lawyer relationship.” Core elements: consulting on objectives, explaining matters to permit informed decision-making, and abiding by client directives within legal bounds. Capacity diminishment only alters the means of performing these duties, not their existence.
• Private Reprimand. A non-public, written discipline issued by the court or its professional responsibility arm—less severe than a public reprimand or suspension but still entered on the attorney’s disciplinary history.
• Judgment on the Pleadings. A summary procedure where the court decides solely on the complaint, answer, and attached documents because no material facts are disputed, making a trial unnecessary.

Conclusion

Office of Lawyer Regulation v. Frenn squarely answers a previously murky question: Must attorneys still communicate directly with clients who have been declared legally incompetent? Wisconsin says “Yes—unless truly impossible, and you must prove the impossibility.” The case embeds client dignity into professional conduct duties and cautions lawyers against over-delegating decision-making to guardians or agents. Every practitioner serving vulnerable populations should take heed, adjusting protocols to ensure direct, respectful, and timely contact with their clients, incapacitated or not.