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Fee opinion recommended for pub

Gregg Herman

Thanks to action by the Family Law Section of the State Bar of Wisconsin, the issue of whether an attorney is entitled to a judgment for attorney fees from a client under Wis. Stat. §767.23(3)(a) when the attorney withdraws, as opposed to being substituted for another attorney, finally has a definitive answer. In Kohl v. DeWitt, Ross & Stevens, S.C., No. 2004AP328 (Aug. 11, 2005) (recommended for publication), the District IV Court of Appeals affirmed the order of Judge Sarah B. O'Brien, of the Dane County Circuit Court, that awarded the DeWitt law firm an attorney-fee judgment upon its withdrawal of representation of Elizabeth Kohl in her divorce.

Wis. Stat. §767.23(3)(a) provides for a separate judgment in favor of any attorney who has appeared for a party to the action when the court makes an order dismissing an action, vacating a judgment or upon substitution of attorneys. By providing for a separate judgment, the statute allows the attorney to avoid the cumbersome, time-consuming and just plain unpleasant process of suing the client in a collection action.

There has long been a gray area regarding the definition of "substitution of attorneys." Frequently, an attorney may seek an order to withdraw — or a client may fire an attorney — without a new attorney immediately substituting in to represent the client. Trial courts have frequently had to rule on whether a "substitution" for a party proceeding pro se entitled the former attorney to a judgment for fees. Some trial courts ruled in the affirmative, some in the negative.

Now, this is no longer an issue. Although the original opinion in Kohl was per curiam and not recommended for publication, the State Bar of Wisconsin Family Law Section, recognizing the frequency with which this issue arises, filed a motion that the opinion be withdrawn and reissued as a signed opinion, recommended for publication. The court agreed.

The majority opinion, authored by Judge Margaret Vergeront, held that Wis. Stat. § 767.23(3)(a) does not limit attorney-fee judgments to circumstances of substitution of counsel, but also extends to withdrawal of counsel. Kohl argued that the term "substitution of attorneys" requires that a new attorney take the case over from a previous attorney. The appellate court held that such a construction was not reasonable "when the term is considered in context and in light of the purpose of the paragraph." The court reasoned that the manifest purpose of the statute was to provide an expeditious means for determining attorney fees under certain circumstances.

The court held: "Whether a client has another attorney ready to step in as soon as the first attorney withdraws, as opposed to proceeding pro se for a short time, as here, or for the entire action remaining, has no rational relationship to whether the first attorney should have available to him or her this expeditious manner of obtaining a judgment for attorney fees owed."

Judge Charles P. Dykman dissented. Although he agreed with the majority's interpretation of Wis. Stat. §767.23(3)(a), he opined that Wis. Stat. § 767.23(3)(a) violates the right to a trial by jury provided by Article I, § 5, of the Wisconsin Constitution. Judge Dykman would remand and require the circuit court to empanel a jury to consider Kohl's defenses to DeWitt's fee claim.

The majority decision provides a common-sense resolution to a long-standing issue. The court is to be commended for listening to the voice of the practicing bar and allowing this holding to be cited as authority, thus eliminating countless future arguments over the subject before trial courts throughout the state.

Gregg Herman is a shareholder with Loeb & Herman, S.C. in Milwaukee, which practices exclusively family law. FamLawUpdate, a free e-mail service of Loeb & Herman, is available by going to or by sending an e-mail.

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