Intervention Case Analysis

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Although the decision in this case bars the firm from intervening in its former associate’s action to recover what it claims are fees due it, the decision does not bar other firms from intervening in future similar cases.

Most important to note is the deferential standard of review the court applied. Had the trial court granted the firm’s motion to intervene, that decision would be entitled to the same deferential standard of review.

Also significant is that the firm in this case waited until eight months after the case was dismissed before moving to intervene. Where the firm files a more timely motion, this case may be distinguishable on that basis.

Even where a firm in a future case does wait eight months, however, this is not fatal to the motion. Wisconsin case law is replete with motions filed much later, but which were held timely, nonetheless.

In. C.L. v. Edson, 140 Wis.2d 168, 409 N.W.2d 417 (Ct.App.1987), intervention was allowed, although the intervenor did not seek intervention until more than nine months after the case had settled. In Kornitz v. Commonwealth Land Title Ins. Co., 81 Wis.2d 322, 260 N.W.2d 680 (1978), the intervenor waited more than three years after the suit had commenced, and yet the motion was not denied as untimely.

Furthermore, in many cases, the law firm will have good grounds for not seeking intervention earlier. Suppose the firm and the attorney part on what seems to be amicable terms.

Should the firm be required to seek immediate intervention in the case of every client that follows the departing attorney, in case a dispute with the former associate arises later? A more reasonable rule is to allow the firm to wait and see, and not hold it against the firm that they did not follow this preemptive course.

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A rule that would require a firm to intervene in every case of the departing attorney shortly after departure would impose an unnecessarily burden on attorneys and the court.

In addition, one fact will almost always weigh in favor of intervention — the absence of prejudice to the parties. Since the subject matter of the intervention is solely between a party’s attorney and his former law firm, generally, neither the defendant nor the plaintiff will be prejudiced by the intervention. Neither the statute nor any case law provides that prejudice to a party’s attorney is a proper factor for denying intervention.

Given the deferential standard of review that is applicable to intervention, the generous case law on timeliness, and the absence of prejudice to the actual parties in cases such as this, the decision should not be interpreted as precluding intervention in future cases, even on very similar facts.

– David Ziemer

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David Ziemer can be reached by email.