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Preclusion Case Analysis

By: dmc-admin//March 3, 2004//

Preclusion Case Analysis

By: dmc-admin//March 3, 2004//

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An interesting question raised by the case is whether the result would be the same as to Mrozek’s claim, if she had pleaded no contest instead of guilty.

The seemingly obvious answer is that issue preclusion would not apply. The “essential characteristic” of a no contest plea is that it can’t be used collaterally as an admission in future civil litigation. Robinson v. West Allis, 2000 WI 126, 239 Wis.2d 595, 618, 619 N.W.2d 692.

Another result of a no contest plea is that it is not even admissible as evidence in a subsequent civil action. Section 904.10.

However, this latter result is plainly inappropriate when the future civil action is a malpractice action against an attorney. Certainly, an attorney sued for malpractice in such a case could not be barred from arguing that the cause of the client’s damages is not the attorney’s malpractice, but the client’s no contest plea. Thus, the plea would have to be admissible in such an action, notwithstanding sec. 904.10.

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Wisconsin Court of Appeals

Related Article

Guilty plea bars malpractice claim

Arguably, though, the no contest plea should bar the action entirely, just as if it were a guilty plea.

In Michelle T. v. Crozier, 173 Wis.2d 681, 495 N.W.2d 327 (1993), the Supreme Court expressly noted that it was not addressing the effect of a no contest plea on application of claim preclusion.

However, even if claim preclusion does not apply, the no contest plea could be regarded as a superseding cause of the conviction and the damages, that bars a malpractice claim as a matter of law.

There is ample authority for the proposition that the intervention of a superseding cause may bar a legal malpractice claim as a matter of law. Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice sec. 8.3 (3d ed.1989). Few things would better fit into this authority than the client’s pleading no contest to a crime, and then blaming his former attorney for his conviction.

– David Ziemer

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David Ziemer can be reached by email.

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