In a rare move, the Wisconsin Supreme Court on Oct. 21 published a disciplinary opinion dismissing a case alleging that an attorney violated the rules against conflicts of interest.
Rebuking the Office of Lawyer Regulation, the court adopted the referee’s recommendation for dismissal, iterating, “I think Respondent [Kyle H.] Torvinen and the law firm should be commended rather than criticized and disciplined in this OLR prosecution.”
Johanna Kirk, a partner with Torvinen’s firm, Knudson, Torvinen, Jones & Kirk, S.C., said the firm was thrilled that the referee and Supreme Court “got what happened.”
“We took the conflict issue very seriously,” Kirk said. “I’m sure most firms would give the issue the same consideration, and I’m glad the court recognized that that is important.”
Nate Cade, a Milwaukee attorney at Michael Best & Friedrich who frequently represents attorneys in OLR proceedings, praised the court’s ruling as well.
“The court clearly sent a signal that it understands the problems inherent in today’s practice when dealing with a potentially former client, and that limited representations are permissible,” Cade said.
Cade added, “This opinion is helpful for those attorneys facing discipline charges, because the court acknowledges that the preamble to the Rules of Professional Responsibility are fertile grounds for defenses to charges brought by OLR,” and that “a lawyer, when confronting an ethical issue, is advised to seek counsel, whether inside the firm or outside, and document that such a consultation took place, and more importantly, that the issue was addressed through ‘sensitive professional and moral judgment.'”
John H. Hendricks, who represented Knudson, Torvinen, Jones & Kirk before the court, said it was a tragedy the dispute went before the court at all, after the firm prevailed before the referee.
Hendricks said it “defied rational thinking” that OLR spent more than $20,000 pursuing the case. “We were flabbergasted they decided to appeal. If Kyle had written the opinion himself, it couldn’t be more overpowering.”
The firm has, for many years, represented Dr. Dane Laughlin.
In 2006 and 2007, an attorney with the firm represented Mary and Tony Chavez in the purchase of a commercial property. Only 5.4 hours were billed in connection with the two matters.
Later, it was discovered that Laughlin had a 10-year-old parking lot lease affecting the property that had never been recorded.
When the firm learned of the dispute between the Chavezes and Laughlin, it advised the Chavezes that it could not represent them in the dispute, and advised them to seek other counsel.
The firm then directed Kirk, at the time an associate at the firm, to review the file to determine if there were any conflict of interest issues raised because of its continued representation of Laughlin.
The firm ultimately concluded that the real estate closing for the Chavezes was not the same matter or substantially related to the lease dispute. Torvinen then directed Kirk to proceed with enforcing the lease in court.
A grievance was filed against Torvinen, and the Chavezes’ attorney demanded that the firm withdraw from representation.
Torveninen agreed to withdraw, but changed his mind after speaking with Laughlin, who said that it would be cost-prohibitive to find a new firm to handle the dispute.
However, after a phone conversation with OLR Director Keith Sellen, the firm did withdraw, and assisted Laughlin in finding new counsel. The case ultimately settled with the Chavezes paying Laughlin a $750 settlement.
More than a year and a half later, OLR filed a complaint against Torvinen, alleging that he violated SCR 20:1.9(a) by representing Laughlin adversely to the Chavezes without obtaining consent from the Chavezes. The referee recommended that the complaint be dismissed, finding that the two representations of the Chavezes were clear cases of limited scope representation. The referee also concluded that the real estate closing and the lawsuit over the lease were not substantially related.
Not only did the referee find no violation of the rules, he commended the firm’s handling of the matter:
“Respondent and his law firm, in my opinion, proceeded with careful and conscientious deliberations showing care and concern for all of their clients. They did their best to even consider the local friendly business environment and attempted to amicably resolve the minor legal problem that somehow raged out of proportion. I consider it all to be the equivalent of the old proverbial ‘tempest in a teapot.’ I think Respondent Torvinen and the law firm should be commended rather than criticized and disciplined in this OLR prosecution. The legal system is in great need of more problem solving attorneys rather than more litigators. Respondent and his law firm attempted to be ethical and reasonable problem solvers to the best of their abilities.”
The OLR appealed, but the Supreme Court agreed with the referee. Quoting from the preamble to the Rules, the court opined, “Attorney Torvinen exercised sensitive professional and moral judgment, and maintained a professional, courteous and civil attitude toward all parties involved in the parking lot dispute.”
The case name is OLR v. Torvinen, No. 2009AP2007-D.
David Ziemer can be reached at firstname.lastname@example.org.