01-0708 Lane v. Sharp Packaging Co. et al.

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“Here, Lane alleges that Niebler acted ‘maliciously’ and ‘[w]ith actual intent to … defraud Lane’ and that Niebler ‘exceeded the bounds of his professional obligation to Sharp and the Scarberrys and became an active participant in … fraudulent activities, acting in bad faith out of self-interest and/or malice toward Lane.’ Under this standard, Lane’s complaint sets forth facts sufficient to maintain an action as a third party, nonclient against Niebler.”

Further, we reject defendant attorney’s contention that it was legally impossible for him and the Scarberrys, as attorney and client, to conspire with each other. This is so because Niebler is a legal entity distinct and separate from Sharp and the Scarberrys. And that status is not altered by the fact that Niebler was the attorney for the Sharp defendants. As such, Niebler and the Scarberrys were capable of engaging in a conspiracy.

Finally, we note that this case is factually distinct from Badger Cab v. Soule, 171 Wis. 2d 754 (Ct. App. 1992) and does not bar plaintiff’s suit against the lawyer.

“First, Niebler has not prosecuted any action against Lane on behalf of the Scarberrys or Sharp. Second, and far more important, Lane’s claims against Niebler stem from Niebler’s alleged fraudulent or conspiratorial conduct prior to this litigation-not from his conduct relating to the litigation itself or his representation of the Sharp defendants during that process. …

“We conclude that where, as here, the attorney’s alleged actionable conduct predates the litigation and is unrelated to the prosecution of the claim or the attorney’s conduct during the litigation, Badger Cab does not bar a simultaneous prosecution of the claim against the client and the attorney in the same action. We therefore conclude that the trial court erroneously exercised its discretion in dismissing Lane’s claims against Niebler.”

Reversed and remanded.

Recommended for publication in the official reports.

Dist II, Waukesha County, Hassin, J., Nettesheim, P.J.

Attorneys:

For Appellant: James O. Huber, Maureen A. McGinnity, David W. Simon, Milwaukee

For Respondent: Larry J. Britton, James C. Reiher, William K. Richardson, Milwaukee