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Standing – Generally; Counsel – Choice of, Disqualification – Civil

Susan Foley-Ciccantelli v. Bishop’s Grove Condominium Association, Inc., 2011 WI 36, on certification; case activity

Standing – Generally

Lead opinion (3-Justice):

¶5   There is no single longstanding or uniform test to determine standing in the case law.  Courts have inconsistently used a variety of terminologies as tests for standing.  Therefore, as a prerequisite to answering the first question, we review the law of standing.  Upon careful analysis of the case law, it is clear that the essence of the determination of standing is: (1) whether the party whose standing is challenged has a personal interest in the controversy (sometimes referred to in the case law as a “personal stake” in the controversy); (2) whether the interest of the party whose standing is challenged will be injured, that is, adversely affected; and (3) whether judicial policy calls for protecting the interest of the party whose standing has been challenged.

The decisive vote reads “personal interest” to mean “personal stake,” and “adversely affected” to mean “actual injury,” Prosser, J., conc., ¶¶115-25. (A separate, 3-vote concurrence baldly states that the lead opinion’s articulation of the test for standing “errs,” ¶149; as the narrower opinion, Justice Prosser’s therefore would seem to embody the holding.) While there doesn’t at first blush appear to be much daylight between Justice Prosser’s concurrence and the lead opinion on these points, some must exist – else, why the concurrence? The lead opinion explicitly declares that “the essence of the determination of standing, regardless of the nature of the case and the particular terminology used in the test for standing, is that standing depends on (1) whether the party whose standing is challenged has a personal interest in the controversy (sometimes referred to in the case law as a “personal stake” in the controversy); (2) whether the interest of the party whose standing is challenged will be injured, that is, adversely affected; and (3) whether judicial  policy calls for protecting the interest of the party whose standing is challenged, ¶40. How does Justice Prosser’s concurrence diverge from this test? The potential sticking point appears to be on the 3rd “element” of the test, “judicial policy,” as to which Justice Prosser’s would employ “the same prudential considerations discussed by the Supreme Court in Valley Forge [Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982)],” ¶130. You will have to consult that case for fuller understanding of the matter, but the difference appears to be in emphasis as much as anything: the lead opinion explicitly states that standing “should be construed liberally” rather than “narrowly,” ¶38. Justice Prosser doesn’t necessarily disagree (the just-stated view “has ample support in our cases,” ¶121).

¶135 In sum, it should be clear that the third prong listed by the lead opinion is not a “catch-all” provision that would allow courts to act as they see fit.  If it is analyzed as a separate element, it is merely a continuation of the prudential considerations this court has upheld in the past.

Indeed, Justice Prosser perceives that “the majority of the court does not favor changing the law” on standing, ¶121. He agrees that standing should be construed “liberally,” just not so much so that “almost anyone can sue,” id.

As for the 3-Justice concurrence (which agrees that remand for additional proceedings are necessary), “judicial policy” appears to be a big part of the rub:

¶158 While I agree with the lead opinion that the test for standing has not always been stated with absolute clarity, I part company with the lead opinion’s elimination of the requirement that the petitioner must show it has a “legally protectable interest” that is being harmed. Removal of the “legally protectable interest” determination from the traditional Wisconsin standing test and replacing it with “whether judicial policy calls for protecting the interest of the party whose standing is challenged” changes a discernable legal standard to no standard at all.  Thereafter, the determination of standing will be driven by whether a court thinks that “judicial policy” warrants standing, whatever that means.

Counsel – Choice of, Disqualification – Civil

Although in general a non-client party in a civil case cannot move to disqualify opposing counsel on the ground of breach of duties owed a former client, narrow exceptions to this rule exist as a matter of judicial policy (lead opinion):

¶71  Accordingly, we conclude that as a general rule only a former or current client has standing to move to disqualify an attorney from representing someone else in a civil action.  Nevertheless, in cases involving a challenge to a party’s standing to bring a motion for disqualification of opposing counsel on the ground that opposing counsel is breaching duties to a non-party former client, to determine the personal interest, the adverse effect, and the judicial policy aspects of standing in Wisconsin we conclude that 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.[48]

¶72  The doctrine of standing in the present case explores whether a connection exists between the current and prior representations and whether the prior representation is likely to affect the just and lawful determination of the non-client party’s position.  In contrast, the standard of law (examined in Part III, below) for determining whether an attorney should be disqualified explores whether the current and subsequent representations involve a substantially related matter.

An attorney in the firm representing plaintiff had represented a defense witness under circumstances leading the court to conclude that defendant “has a personal interest in the motion to disqualify opposing counsel that is adversely affected because the prior representation is connected with the current litigation,” ¶80. (Justice Prosser doesn’t undertake separate discussion on this point, so he presumably subscribes to it.) If the prior representation is “substantially related” to the current case, the law firm might have obtained confidential information that will be relevant to the current representation and adverse to the former client, ¶88.

¶94  In applying SCR 20:1.9 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.[70]

Remand is necessary for the circuit court to make the determination of whether former and current representations are substantially related, ¶¶112-14. The 3-Justice concurrence diverges on applicability of the SCRs to the determination of whether a party has a “legally protectable” interest arising from opposing counsel’s representation of a witness, ¶¶167-81. However, in the view of the concurrence, if counsel indeed obtained “proprietary and confidential information of” the party in the course of this representation, then disqualification can be raised. Remand is necessary, the concurrence agrees, to explore this point, ¶182. The concurrence summarizes the tension points this way:

¶183 I do not join the lead opinion for three reasons:  (1) it creates and then applies a new test for standing that does not require Bishop’s Grove to make a showing that it has a legally protectable interest in the Cramer law firm’s attorney-client relationship with a potential witness; (2) it employs ch. 20 of the Supreme Court Rules as a legal basis upon which to confer standing to Bishop’s Grove to disqualify plaintiffs’ attorney; and (3) whether defendants have standing to challenge plaintiffs’ choice of attorney based on a communication of Bishop’s Grove’s confidential information cannot be decided conclusively on the record before us.  Accordingly, I would remand to the circuit court to hold an evidentiary hearing in order to permit Bishop’s Grove to demonstrate whether Wayne Foster improperly transmitted Bishop’s Grove’s confidential information to plaintiffs’ attorney.

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