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Wisconsin lawyer ‘too busy’ for client, forfeits $2K retainer

By: DOLAN MEDIA NEWSWIRES//September 7, 2011//

Wisconsin lawyer ‘too busy’ for client, forfeits $2K retainer

By: DOLAN MEDIA NEWSWIRES//September 7, 2011//

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By Pat Murphy
Dolan Media

Doug Kammer

Among the worst things to say to a client, “I’m too busy for you” certainly ranks right up there.

One Wisconsin lawyer has learned that rather elementary lesson the hard way.

Doug Kammer has a wide-ranging general practice in Portage. His two-member firm, Kammer & Greiber, handles everything from personal injury to bankruptcy.

Ronald Augsburger approached Kammer for help with a neighborhood dispute. Augsburger’s Pardeeville home has a nice view of a local lake. But in 2009, his neighbor obtained a building permit for a structure that would block Augsburger’s view.

When the neighbor began construction, Augsburger retained Kammer to stop the project dead in its tracks.

Under a written retainer agreement, Kammer committed to filing an appeal with the Pardeeville Zoning Board and filing for a temporary restraining order blocking construction of the neighbor’s building. The retainer agreement also noted that appearances by the Kammer firm would be needed both for the filing of the zoning appeal and the action for a TRO.

Augsburger paid a nonrefundable $2,000 retainer to be credited against Kammer’s charges of $250 per hour.

Kammer diligently proceeded with the matter — at least at first — submitting a written request with the zoning board to rescind the neighbor’s building permit and schedule a hearing on the dispute.

Before a hearing could be scheduled on Augsburger’s complaint, however, the zoning board heard a request by the neighbor for a zoning variance. Kammer showed up at that hearing, but the board granted the variance.

The zoning board scheduled a hearing on Augsburger’s request to rescind the neighbor’s building permit for July 28, 2009.

However, on the Friday before Augsburger’s big hearing in front of the Pardeeville Zoning Board, the client received a voicemail from Kammer that threw him for a loop.

According to Augsburger (and as later found by a state trial court), the voicemail informed him that Kammer was too busy with other matters to represent Augsburger at the hearing. Kammer allegedly proffered the excuse that he had several briefs due and lacked the time to work on Augsburger’s zoning case.

Kammer allegedly provided the names of other local attorneys who might be of help.

Kammer did not attempt to have the zoning hearing rescheduled so that he could attend, as a court later found.

So Augsburger showed up at the hearing without the benefit of counsel and promptly lost his case.

Augsburger then sued the Kammer firm for the return of his retainer.

A state judge ruled in the client’s favor, finding that Kammer anticipatorily breached the attorney-client contract by abandoning a specific task that he had promised to perform.

Last week, the Wisconsin Court of Appeals affirmed the order requiring Kammer to return Augsburger’s $2,000 retainer.

Kammer made an ineffectual effort arguing that he should at least be paid for the work he did perform for Augsburger.

The court was wholly unimpressed.

“In determining that Augsburger received no benefit from the law firm’s work, the (trial court) did not ignore the fact that attorney Kammer performed tasks before committing the breach. Instead, the court concluded that the pre-breach work was of no benefit to Augsburger. …

“The firm’s argument to the contrary does not appear to raise a factual dispute, and so its reference to a ‘clearly erroneous’ decision is misplaced,” the court said.

Revealing more than a little exasperation with Kammer, the state appeals court stated that “the law firm does not appear to contest any factual finding of the (trial) court, provides no legal authority for the proposition that the court relied on an incorrect legal theory in addressing damages for breach of contract, and further provides no legal authority for the proposition that, even if the circuit court relied on the correct legal theory, this court should determine that the circuit court applied that theory incorrectly.”

The court concluded by saying that it “would be unfair for this court to develop the law firm’s argument for it and render a decision on that basis, because that would deprive Augsburger of an opportunity to respond.”

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