Civil Procedure — sanctions

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Wisconsin Court of Appeals

Civil

Civil Procedure — sanctions

A law firm cannot be sanctioned for pre-litigation advice it gave to a client.

“The parties have not cited to any case, and our research has not revealed one, which suggests that the trial court has the inherent authority to sanction Godfrey & Kahn for conduct which occurred before the court’s jurisdiction was invoked. But there is a well-established test in our Wisconsin jurisprudence for the inherent power to sanction: whether ‘such power is necessary to the functioning of the court.’ Henley, 328 Wis. 2d 544, ¶74. Whether it is ever possible for pre-litigation conduct to justify the exercise of inherent power is an issue we do not reach because it is not necessary to our decision. See Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d 707. Here, the record is clear that the trial court’s sanction for pre-litigation conduct does not comport with the three areas in which such authority is generally exercised: ‘to guard against actions that would impair the powers or efficacy of the courts or judicial system’; ‘to regulate the bench and bar’; and ‘to ensure the efficient and effective functioning of the court, and to fairly administer justice.’ See Henley, 328 Wis. 2d 544, ¶73.”

Writ granted.

Recommended for publication in the official reports.

2011AP921-W State of Wisconsin ex rel. Godfrey & Kahn, S.C., v. Circuit Court for Milwaukee County

Dist. I, Milwaukee County, Flynn, J., Brennan, J.

Attorneys: For Petitioner: Shriner, Thomas L., Jr., Milwaukee; Pearson, Eric Gordon, Milwaukee; For Respondent: Potter, Kevin C., Madison; Weber, Gregory M., Madison; Rice, David C., Madison; Kravit, Stephen E., Milwaukee; Aizenberg, Aaron, Milwaukee; Finerty, Daniel, Milwaukee; Huitink, Michael D,. Milwaukee; Kreiter, Maria L., Milwaukee