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The Wisconsin Supreme Court has voted to grant review in one case. The case number, issue, and county of origin are listed below.

2009AP688 Foley-Ciccantelli v. Bishop’s Grove

This certification asks the Supreme Court to examine several issues related to legal representation in a civil suit: the right of a party to be represented by counsel of choice; the right of retained counsel to represent a party; and the judicial right and authority to intervene.

Background: The underlying case here is a slip-and-fall negligence action brought by Susan Foley-Ciccantelli and her husband, Dr. Mark J. Ciccantelli, against Bishop’s Grove Condominium Association, Inc. (Bishop’s Grove) and it insurer, State Farm Fire & Casualty Company (State Farm).

The Ciccantellis alleged that Bishop’s Grove had failed to properly maintain common property, causing serious injuries to an ankle when Susan Foley-Ciccantelli slipped and fell on ice in what the Ciccantellis contend is a condominium common area. As the case moved through circuit court, controversy arose over legal representation.

The Ciccantellis had retained Atty. Mark Andringa of the Waukesha law firm of Cramer, Multhauf & Hammes, LLP (CMH) to recover damages for them, and it was the CMH firm that filed the summons and complaint on their behalf. CMH had in the past provided representation regarding real estate development issues to Foster Group Ltd. (Foster Group), which was the registered agent and property manager for Bishop’s Grove. The Foster Group was not a current client of the CMH firm at the time of the incident.

After Ms. Foley-Ciccantelli’s fall, however, the CMH firm asked Wayne Foster, the principal of the Foster Group, to speak with a State Farm claims adjuster regarding condominium law and to explain to the adjuster that Bishop’s Grove was responsible for maintaining the driveway and the exterior of the building as common elements of the condominium.

Bishop’s Grove says that the Foster Group is its agent pursuant to a contract. It also contends that the Foster Group is an insured under its policy with State Farm, which defines “insured” to include “any organization while acting as your (Bishop’s Grove’s) real estate manager.”

As the case proceeded, Atty. Andringa sent a letter to Wayne Foster that asked about scheduling a date for Foster’s deposition. Foster told the lawyer representing Bishop’s Grove that the Foster Group had previously had a lengthy attorney/client relationship with CMH. Bishop’s Grove then filed a motion to disqualify the CMH firm from representing the Ciccantellis, with a supporting affidavit from Wayne Foster.

The circuit court ultimately granted the disqualification motion, stating that there was an appearance of impropriety because of CMH’s prior representation of the Foster Group. The court noted that Wayne Foster would have an important role in the resolution of the litigation.

The Ciccantellis filed a petition for leave to file an interlocutory appeal of the order disqualifying the CMH law firm from representing them. The Court of Appeals granted the petition. The Ciccantellis’ brief in the Court of Appeals lists two issues to be decided on appeal:

1. Does Bishop’s Grove Condominium Assn, Inc., as a non-client, have standing to assert attorney conflict of interest?

2. Is there a substantial relationship between the subject matter of CMH’s previous representation of the Foster Group, who is not a party in this case, and CMH’s current representation of the Ciccantellis?

In certifying the case, the Court of Appeals focuses on whether Bishop’s Grove, who was neither a current client nor former client of the CMH firm, has standing to seek disqualification of that firm from representing an opposing party in a lawsuit. The Court of Appeals poses the question: Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorney’s right to practice law in a civil action where the attorney previously represented a nonparty witness for the opposing side?

A decision by the Supreme Court could clarify the law regarding the standards for disqualification of attorneys, including the issue of who may seek to disqualify the attorney(s) representing an opposing party.