May 24, 2011
Non-Party Standing For Motion To Disqualify Counsel
The Wisconsin Supreme Court reversed and remanded a case, concluding that a non-party had standing to raise disqualification of counsel but that the lower court improperly applied an "appearance of impropriety" test to the motion:
...to determine whether disqualification is required, a court must determine: (1) whether there was an attorney-client relationship and whether it has ceased; (2) whether the subsequent representation of another person involves the same or a substantially related matter; (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. In the instant appeal, it is undisputed that an attorney-client relationship had existed between the Cramer firm and Wayne Foster and the Foster Group and that the Cramer firm no longer represented Wayne Foster or the Foster Group at the time the slip-and-fall litigation began. Furthermore, no one asserts that the former clients (Wayne Foster and the Foster Group) have consented to the Cramer firm's representation of the plaintiffs in the present case...
We conclude that the circuit court applied an incorrect standard of law in disqualifying the plaintiffs' attorney, namely disqualifying the attorney on the basis of the "appearance of impropriety." Given the paucity of facts in the record relating to the attorney's prior representation of the Foster Group and Wayne Foster, we are unable to determine whether the two representations are substantially related such that the confidences of the Foster Group and Wayne Foster are implicated in this personal injury action or whether the current representation is materially adverse to the former client.
We cannot determine from the record before us whether the circuit court's order disqualifying the plaintiffs' attorney is erroneous when applying the correct standard. Accordingly, we reverse the order of the circuit court disqualifying the plaintiffs' attorney and remand the matter to the circuit court for such further proceedings as the circuit court determines are appropriate to resolve the question presented.
Justice Prosser (joined by Justices Ziegler and Gableman) concurred but
In reaching this result, however, the lead opinion engages in a lengthy review of Wisconsin cases and produces, in effect, a restatement of the law. It is this restatement of Wisconsin law on standing that triggers two concurrences and some angst.
To the extent that the lead opinion attempts to bring order out of chaos in our law on standing, it serves a constructive purpose. We all benefit when the court provides a clear restatement of the law. However, if the restatement changes the law while purporting simply to clarify it, it goes beyond the facts, effects a result that was neither requested nor briefed by the parties, and creates confusion among the bench and bar.
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