On Point

certification

Issue:

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.

court of appeals decision (1-judge, not for publication); for Sporle: Robert J. Jackson; BiC; Resp.; Reply

Implied Consent Procedure, § 343.305(2)

¶12 The officer complied with her obligations to provide the “Informing the Accused” information and to make an alternative test available. The officer informed Sporle that, if he took the requested test, he could have an alternative test free of charge, and she further informed him that the free test would be a urine test. The officer also informed Sporle of his right to further testing at his own expense. Again, the officer was not required to provide the test of Sporle’s choosing. See id. Further, although Sporle alleges that he was misled, this allegation goes nowhere because the information given to Sporle was accurate. See State v. Ludwigson, 212 Wis. 2d 871, 875, 569 N.W.2d 762 (Ct. App. 1997) (stating that additional information must be erroneous to render the informing the accused process inadequate).

court of appeals decision (1-judge, not for publication); for Davison: Steven Cohen; BiC; Resp.; Reply

Reasonable Suspicion – OWI
Reasonable suspicion found to administer field sobriety tests, where Davison admitted drinking 4 or 5 beers, had alcohol on his breath, was in close proximity to the bar where he had been drinking, and it was bar closing time.

“Bar closing time” bids to become for suppression litigation what “high-crime area” has long been: boilerplate. It must be said in this instance, though, Davison might as well as have been flashing a “Drunk Driver” sign.

court of appeals decision (1-judge, not for publication); for Miller: Dudley A. Williams; BiC; Resp.; Reply

Community Caretaker

Miller caught the attention of the police by driving very slowly, early in the morning, and pulling into the parking lot of a closed business. But he soon drove off, and neither committed any traffic violations nor engaged in suspicious behavior; his ensuing stop wasn’t supportable under a community caretaker rationale:

¶16      We conclude that Harper’s conduct was not a bona fide community caretaker activity because it did not meet the standard. See id., ¶¶27, 35; see also Anderson, 142 Wis. 2d at 169. Harper did not testify that he was motivated by a belief that the driver was in need of any assistance, medical or mechanical. See Kramer, 315 Wis. 2d 414, ¶27.  Additionally, Harper did not articulate an objectively reasonable basis for his actions as a community caretaker. See id., ¶36. Indeed, the record is void of any showing that Harper was concerned that Miller may have been in need of assistance. The record tells us little more than Harper “wanted to stop [Miller’s] vehicle right away before it merged onto [Highway] 16.” Harper’s actions were not “totally divorced” from his law enforcement function and, therefore, do not qualify as actions within his community caretaker function.[4] See id.

Key point: Police motivation is a relevant factor, ¶15, and the court essentially agrees with Miller (BiC, p. 16) that, given his failure to express any belief Miller needed help, the officer wasn’t motivated by desire to provide aid, hence the caretaker doctrine didn’t apply.

court of  appeals decision (3-judge; not recommended for publication); for Jackson: Mark S. Rosen; BiC: Resp.; Reply

Double Jeopardy – Retrial Following Mistrial
Mistrial on defendant’s motion, occasioned by prosecutorial failure to disclose that witness was cooperating with police in separate investigation of Jackson, didn’t bar retrial: there was no showing that the prosecutor was aware of the undisclosed information, or that failure to disclose was intended to provoke mistrial, ¶¶16-25. State v. Jose M. Jaimes, 2006 WI App 93, followed.

Confrontation – Expert Testimony
Testimony from medical experts based on (lab and autopsy) reports others prepared, didn’t violate Jackson’s right to confrontation, ¶¶26-39.

Nightmare on Elm Street: the Confrontation Clause just refuses to be killed off. Richard Friedman puts it like this:

Sooner or later, the Supreme Court will have to resolve the question of who must testify to the substance of a lab test. Indeed, with Briscoe now safely off the Supreme Court’s docket, this would be a logical next issue for the Court to tackle; the justices were interested in it both in Melendez-Diazand in Briscoe. Jeff Fisher has just filed a cert petition raising this issue in Pendergrass v. Indiana, seeking review of Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009). You can read it by clicking here.

Our courts cling to the view that so long as one expert doesn’t “act as a mere conduit for the opinion of another,” ¶28, then there’s no confrontation problem. We’ll see. In the meantime, make absolutely sure to preserve objection, futile though it may presently be (see ¶28 n. 6).

Counsel – Effective Assistance
“(W)e need not determine the effect of Melendez-Diaz on Jackson’s appeal because Melendez-Diaz was decided after Jackson’s trial and Jackson’s trial counsel cannot be deficient for failing to ‘forecast changes or advances in the law.’  See Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993); see also State v. Maloney, 2005 WI 74, ¶23, 281 Wis. 2d 595, 698 N.W.2d 583,” ¶28 n. 6.

court of appeals decision (3-judge; not recommended for publication); pro se; Resp. Br.

Serial Litigation Bar
Collins’ § 974.06 motion is procedurally barred by his failure to allege a “sufficient reason” for not previously raising issues as part of his prior, no-merit appeal, ¶1.

Bit more interesting than that, in the following sense: the court not only pays lip service to the idea that it “must pay close attention to whether the no merit procedures were followed,” but proceeds to carry out that task with some diligence, ¶¶9-14. The details are mundane, but in their very ordinariness illustrate pretty well the unwieldy system of postconviction review now in place. State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), of course, was meant to limit collateral review by imposing a “serial litigation” bar following direct appeal. The bar was extended to collateral attacks following no-merit appeals (whether that makes sense is presently beside the point, except to say that difficulty applying the bar is heightened in this context, Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003); State v. Christopher G. Tillman, 2005 WI App 71; State v. Ricky J. Fortier, 2006 WI App 11).What it comes down to is that where, as here, the litigant asserts ineffective assistance as the “sufficient reason” then the court is more or less compelled to reach the merits of the claim(s). The supreme court had the opportunity to modify Escalona, in State v. Anou Lo, 2003 WI 107, but instead “reinforce(d)” the holding. And so, every serial litigation claim will include an ineffective-assistance argument, which will compel the reviewing court to look at the merits.

State v. Carl Ralph Eichorn, 2010 WI App 70; for Eichorn: Melissa Fitzsimmons, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Evidence was sufficient to support stalking conviction, though the requisite “course of conduct” occurred over short span of time:

¶9     In sum, there is more than sufficient evidence under our standard of review to support beyond a reasonable doubt Eichorn’s stalking conviction. Although Eichorn refers us to cases where the stalking persisted over a long time, and what happened here spanned apparently fewer than fifteen minutes, the statute, as we have seen, specifically provides that stalking may be “a series of 2” acts over a “short” time if the acts “show a continuity of purpose.” Wis. Stat. § 940.32(1)(a). Eichorn’s acts reveal beyond a reasonable doubt his “continuity of purpose” to, as he testified, take “a long shot” that she might go with him. We affirm.

Elements discussed in some detail, ¶8. Eichorn asked a 17-year-old girl (Vivian) at a school bus stop to get in his car; she refused, got on her bus, and when she got off a few minutes later, Eichorn was there, and suggested he could take her the rest of the way home, ¶¶3-4. That’s it. If the evidence seems thin, that’s because it is. But still enough. Where’s the “threat” element? Here, says the court:

The next element is that Eichorn “kn[e]w[] or should [have] know[n] that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress.” See Wis. Stat. § 940.32(2)(b). Here, too, there is more than enough evidence in the Record to prove beyond a reasonable doubt that at the very least Eichorn should have known that approaching Vivian L. at the bus stop (whether he believed she was seventeen, eighteen, nineteen, twenty, or older) where she was alone and a stranger to him, and then pestering or cajoling her to get into his car would cause her to “feel terrified, intimidated, threatened, [or] harassed.” See § 940.32(1)(d). Additionally, Eichorn either knew or should have known that following Vivian L.’s bus to try to get her into his car again after she had vociferously rebuffed him the first time at the bus stop would terrify her, especially since he had ostensibly driven away when she rebuffed him at the bus stop. See ibid.

Vivian certainly felt terrified: did she overreact? The court suggests it is applying an objective test (“a similarly situated victim would not only be frightened because of the initial approach at the bus stop but would be even more terrified by the realization that the person had followed her bus during the four-to-five minute trip”), but more by fiat. In so many words, the court indicates that you take a stalking victim as you find her (think: “eggshell” skull tort victim). And yet, as the court indeed notes, the statute expressly requires “a reasonable person under the same circumstances to suffer serious emotional distress.” Was Eichorn an obnoxious boor or dangerous predator? The court apparently thought the latter. Was Vivian overly delicate? The court of appeals didn’t think so. What do you think? Better still: how would you have convinced a jury that her reaction was extreme, because that was Eichorn’s only real chance? In case you were wondering, Eichorn got a 4-year prison sentence, 22 months’ confinement.