Lawyer was improperly disqualified

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A party need not be a former client of an attorney in order to object to the attorney’s representation of his adversary.

Nevertheless, the Wisconsin Supreme Court held on May 24 that the party must show more than just the appearance of impropriety, and reversed a lower court’s disqualification of an attorney from a case.

The lead opinion by Chief Justice Shirley Abrahamson, joined by Justices Ann Walsh Bradley and N. Patrick Crooks, based the standard for disqualification on SCR 20:1.9: The court must determine: (1) whether there was an attorney/client relationship between counsel and the former client and whether it is over; (2) whether the subsequent representation involves the same or a substantially related matter as the former representation; (3) whether the interests of the subsequent client are materially adverse to those of the former client; and (4) whether the former client consented to the new representation.

The plaintiffs in the case, Susan Foley-Ciccantelli and Mark J. Ciccantelli, purchased a condominium from Bishop’s Grove Condominium Association. Later, represented by Timothy Andringa of Cramer, Multhauf & Hammes LLP, they brought a premises liability action against Bishop’s Grove.

The managing agent for Bishop’s Grove is the Foster Group, and Wayne Foster is its principal.

Another attorney in Andringa’s firm has previously represented the Foster Group and Wayne Foster on real estate matters, and although neither is a party to the action, Wayne Foster is a potential witness.

Bishop’s Grove moved to disqualify Andringa based on the past representation, and the circuit court granted the motion, finding that the representation gave rise to the appearance of impropriety.

The case was certified to the Supreme Court, which unanimously reversed while disagreeing on the reasoning.

Standing

The justices joining the lead opinion first held that Bishop’s Grove had standing to seek disqualification.

They acknowledged prior case law suggesting that only a client, and not a third party, has standing to object to an attorney’s representation.

But because standing was not an issue in those cases, they treated the issue as one of first impression.

They concluded that a strict rule giving standing only to clients would be too restrictive, in light of Wisconsin’s rule allowing direct actions against insurance companies without naming the insured as a party.

Abrahamson explained, “An insurance company sued under the direct action statute would be prohibited as a non-client party defendant from bringing a motion to disqualify opposing counsel on the basis of counsel’s prior representation of the insurance company’s insured. Such a rule of standing would be too restrictive.”

Accordingly, while adopting a general rule that only a former or current client has standing to disqualify an attorney, the opinion included the following qualification: “a non-client party has standing to move for disqualification of opposing counsel, when the prior representation is so connected with the current litigation that the prior representation is likely to affect the just and lawful determination of the non-client party’s position.”

Application

Turning to the facts of the case, the justices were unable to decide whether the standard was met on the record before it.

The circuit court had applied an appearance of impropriety test, without first holding an evidentiary hearing.

Lacking a record on whether the firm’s former representation of Bishop’s Grove is substantially related to the current action, the justices remanded the case to the circuit court for further proceedings.

Andringa said he is confident that the court will find on remand that there is no substantial similarity between the firm’s prior representations of the property manager, and the tort action.

Concurrences

Justice David Prosser wrote a concurrence, agreeing that a non-client could have standard to seek disqualification of an attorney. However, he criticized the lead opinion for going beyond the facts and creating a new standard that was not requested by the parties, and did not endorse the standard based on SCR 20:1.9.

Justice Patience Drake Roggensack also wrote a concurrence, joined by Justices Annette Kingsland Ziegler and Michael Gableman.

The Roggensack concurrence concluded that non-clients lack standing to seek disqualification of an attorney, and criticized the court for using the rules of professional responsibility as a legal basis for conferring standing.

With no opinion garnering more than three justices’ approval, it is questionable whether any rule can be synthesized that would guide lower courts.

But John Ebbott of Legal Action of Wisconsin, who wrote an amicus curiae brief in the case, said he believes it can be done.

Ebbott highlighted Prosser’s concurrence, which says, “For the most part, the lead opinion substitutes the phrase ‘personal interest’ for ‘personal stake.’ So long as these phrases mean the same thing, there should be no compliant. If, however, the phrase ‘personal interest’ means something less than ‘personal stake,’ I do not subscribe to it.”

Prosser defined “personal stake” in litigation as existing when a person has suffered an actual injury to a legally protected interest or is threatened with one.

According to Ebbott, if a non-client party could demonstrate a “personal stake,” then there would be four justices that would agree that it would have standing to seek disqualification.

Analysis

This case may not provide the last word on the issue from the court. Although four justices agreed that a non-client party could have standing to seek disqualification of an attorney, only three joined the lead opinion, which crafted a standard for disqualification based on Supreme Court rules governing attorneys’ professional conduct.

The opinion states, “Appellate courts have often cited the Rules of Professional Conduct for guidance in non-disciplinary cases including disqualification cases. The Introductory Note to the Restatement (Third) of Law Governing Lawyers (2000) explains that lawyer code provisions may be relevant for the purpose of a motion for disqualifying a lawyer.”

But the Roggensack concurrence, joined by two other justices, rejects this proposition: “The Preamble demonstrates that the purpose of the rules is not to provide remedies outside the real of professional discipline.”

The preamble states, in part, “Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. … Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule.”

The Prosser concurrence is silent on this issue.

But when the Supreme Court adopted the rules in 2006, their scope was a very contentious topic. The above language was included in the preamble for the express purpose of preventing the rules from being incorporated into substantive law outside of attorney discipline cases.

As a result, the standard set forth in the lead opinion may not survive the next time a disqualification issue is presented to the court.

What the Court Held

Case: Foley-Ciccantelli v. Bishop’s Grove Condominium Association, No. 2009AP688

Issues: 1) Does a non-client party have standing to move to disqualify its opponent’s attorney? 2) What is the standard for disqualification?

Holdings: 1) Yes, but the right is limited. 2) The attorney should be disqualified if the subsequent representation involves the same or a substantially related matter as the former representation.

Attorneys: For Plaintiffs: Timothy Andringa, Waukesha; For Defendant: Neal Schellinger, Waukesha

David Ziemer can be reached at [email protected].