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Foley-Ciccantelli v. Bishop’s Grove, 2009AP688, rev. granted 4/19/10



Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorney’s right to practice law in a civil action, where the attorney previously represented a nonparty witness for the opposing side?

The Ciccantellis sued a condo association for a personal injury. Turns out plaintiffs’ counsel had also represented the association’s property manager; the trial court disqualified counsel from representing plaintiffs, and here we are. The certification notes that attorney-disqualification turns on whether the multiple reps are “substantially related.” Of course, if that were all this case is about, then it would hardly merit certification — the wrinkle:

The novelty here is that the disqualification stems from the relationship between the Ciccantellis’ law firm and that firm’s past representation of Foster, a key witness and an agent of Bishop’s Grove. In what appears on its face rather incongruous, Bishop’s Grove invokes SCR 20:1.9(a) (2010), called “Duties to former clients,” even though Bishop’s Grove is not a former client of Cramer. Bishop’s Grove emphasizes that Foster is its agent and is the witness through whom the question of liability will likely be resolved. This certification asks whether disqualification of an attorney pursuant to SCR 20:1.9 is available to nonclients.

None of these cases offer guidance on the precise question presented: Can disqualification of an attorney in a civil lawsuit be prompted by the attorney’s prior representation of a third-party witness, who is also an agent of the party moving for disqualification? …

The case law dealing with who may move for disqualification is scarce. The interests involved, however, are substantial.  A litigant has a strong interest in being represented by his or her attorney of choice.  Berg, 141 Wis. 2d at 887. A litigant also has a strong interest in court proceedings untainted by an unfair advantage to the adverse party. See Burkes, 165 Wis. 2d 600 (ethical codes preserve a “lay sense of justice”). These competing interests raise an important question both substantively and procedurally in the efficient administration of justice. Clarification of the proper use of disqualification will impact a litigant’s right to counsel of choice, an attorney’s ability to manage his or her law practice, and a court’s authority to intervene.  For these reasons, we respectfully certify the issue.

Any of this have anything to do public defender practice? Hard to say, except that when we are discussing counsel DQ at all we can’t be sure where we’ll end up. As long as we’re this far along the bridge that might or might connect civil and criminal practice, it’s worth noting (even if the certification failed to) the pending Sands v. Menard, 2009 WI App 70, rev. grant 9/10/09 (“Must an employer/client’s right to choose its general counsel yield to an arbitration award for reinstatement when neither the employer/client nor its former employee/general counsel had requested that remedy and when the attorney-client relationship is irretrievably broken?”). Now, that happens to be an interesting case. No attempt will be made to summarize it here, except to say a couple of things. First, at the risk of oversimplification, it’s about whether reinstatement of counsel is an appropriate remedy for wrongful discharge (Title VII). Second, “irretrievably broken” gives but the merest flavor of the rupture, punctuated by counsel’s public excoriation of her once and possibly future client’s integrity. The case is well-argued and the opening brief worth a look if you’re curious about the details. One last tangent and we are done: did you know there is (or was till recently) stigma attached to being in-house counsel? So says amicus, and given the court of appeals’ otherwise mystifying refusal to so much as acknowledge the problem of Menard’s lack of fealty to her client, the court indeed must have thought in-house counsel an unworthy position. And you thought only PDs were looked down on.

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