June 1, 2011 – In a case of first impression, the Wisconsin Supreme Court recently ruled that a nonclient party – one who is not a former or current client of opposing counsel – could have standing to move for disqualification of opposing counsel.

Chief Justice Shirley Abrahamson wrote the lead opinion in Ciccantelli v. Bishop’s Grove Condominium Association, 2011 WI 36 (May 24, 2011) (joined by Justices N. Patrick Crooks and Ann Walsh Bradley), which expands the law of standing in attorney disqualification actions.

Specifically, it allows nonformer clients to disqualify opposing counsel when opposing counsel (or opposing counsel’s firm) has represented a nonparty on matters closely tied to the case.

In other words, the court ruled the defendant in the case has standing to move for disqualification of the plaintiff’s counsel despite the fact that neither plaintiff’s counsel, nor anyone from his law firm, ever represented the defendant.

The lead opinion uses Supreme Court Rule 20:1.9 (duties to former clients) as a guiding principle. SCR 20:1.9 specifically gives former clients the right to disqualify an attorney’s representation of subsequent clients in the same or substantially similar matters if the interests of the subsequent client are materially adverse to the former client.

In a concurring opinion, Justice David Prosser agreed that a nonparty client could have standing to move for disqualification of opposing counsel, and agreed that Bishop’s Grove had standing in this case, creating a majority. But Justice Prosser took issue with a standing analysis that “changes the law while purporting simply to clarify it.”

In a concurring opinion, Justices Patience Roggensack, Annette Ziegler, and Michael Gableman agreed that a nonparty client could have standing to move for disqualification of opposing counsel. But those justices clearly disagreed on the analysis required in making a determination.

The case means nonclient parties can move to disqualify opposing counsel if the nonclient party has standing to do so. But the differing views leave something to be desired in terms of the analysis required to determine whether the nonclient party has standing or not.

Facts

Susan Foley-Ciccantelli and her husband (the Ciccantellis) sued Bishop’s Grove Condominium Association after she was injured in a slip-and-fall, alleging Bishop’s Grove allowed ice to accumulate negligently on common property owned by Bishop’s Grove.

The Ciccantellis hired Timothy Andringa, a partner at Cramer, Multhauf & Hammes LLP (Cramer law firm), to represent them. Andringa never represented Bishop’s Grove.

However, another lawyer in Andringa’s firm, Peter Plaushines, represents the Foster Group, the property management agent for Bishop’s Grove, and the Foster Group’s principal, Wayne Foster. The Foster Group is not a named party to the case but is an insured under Bishop’s Grove’s comprehensive business liability policy.

Further, Bishop’s Grove and the Foster Group have a management agreement, under which the Foster Group is charged with maintaining Bishop’s Grove’s property.

Bishop’s Grove moved to disqualify Andringa based on his firm’s representation of the Foster Group, asserting Andringa would have an advantage based on the firm’s prior representation of the Foster Group. The Ciccantellis challenged Foster Grove’s standing to do so.

The circuit court granted the disqualification motion based on an “appearance of impropriety.”

The appeals court certified the appeal, asking the supreme court to decide whether Bishop’s Grove (a nonclient party) has standing to move for disqualification of Andringa based on the Cramer law firm’s representation of the Foster Group (a nonparty).

The appeals court also asked the supreme court to clarify the proper standard in deciding a motion for disqualification of an attorney, and whether an “appearance of impropriety is the correct standard.”

Standing

The lead opinion ruled that, in general, only a former or current client has standing to move to disqualify an attorney from representing someone else. But the court created an exception.

The opinion noted that when “no statute, rule or constitutional provision directly governs the standing analysis,” courts must determine standing issues using relevant legal principles.

“The issue requires the court to determine whether under the facts and relevant legal principles Bishop’s Grove has a personal interest in the controversy; whether Bishop’s Grove’s interest will be adversely affected; and whether judicial policy calls for protecting Bishop’s Grove’s interest,” Chief Justice Shirley Abrahamson wrote.

Looking to SCR 20:1.9, the court ruled that “a non-client party may establish standing … 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.”

The court ruled the Bishop’s Grove had standing, because the Cramer law firm’s prior representation of the Foster Group “is so connected with the current litigation that the prior representation is likely to affect the just and lawful determination of Bishop’s Grove’s position.”

Bishop’s Grove is urging the court to enforce duties owed to the Foster Group, the lead opinion noted, and the doctrine of standing generally “prohibits a litigant from raising another’s legal rights.” But it concluded the restrictive rule is inconsistent with Wisconsin legal doctrine.

“This strict position seems contrary to the general doctrine in Wisconsin law that standing is generally not construed narrowly or restrictively but rather broadly in favor of those seeking access to the courts,” Chief Justice Shirley Abrahamson wrote.

The lead opinion aligns with other jurisdictions, which take a “middle course” that “avoids the pitfalls of a rule that a non-client party has no standing to move to disqualify opposing counsel and a rule that every non-client party has standing.”

The concurring opinions agreed that a non-client party could have standing to move for disqualification in cases like this, but disagreed on the analysis required to determine standing.

Determining if standing exists

The lead opinion ruled that “a non-client party may establish standing …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.”

The lead opinion agreed that Bishop’s Grove established it had standing to move for disqualification. Justice Prosser agreed, creating a majority on this point.

In a concurring opinion written by Justice Roggensack, three justices argued the lead opinion “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.”

Those justices would require Bishop’s Grove to demonstrate “whether Wayne Foster improperly transmitted Bishop’s Grove’s confidential information to plaintiffs’ attorney.”

Standing exists, now what?

Once standing is established, the lead opinion sets forth the proper standard in determining whether opposing counsel should be disqualified, a point on which the concurring opinions did not disagree. The lead opinion reversed the circuit court’s use of the “appearance of impropriety test,” in favor of a test that follows the guidance if SCR 20:1.9.

The lead opinion explained that a circuit court must determine whether: there was an attorney-client relationship between counsel and the former client and whether it is over; the subsequent representation involves the same or a substantially related matter as the former representation; the interests of the subsequent client are materially adverse to those of the former client; and the former client consented to the new representation.

Noting the “paucity” of facts, the court determined that it could not make the determination of whether Andriga’s representation of the Ciccantellis involves a same or substantially related matter, and whether their interests are materially adverse to the Foster Group. Thus, the court remanded the case for the circuit court to make a determination on this point.

Attorneys

Timothy J. Andringa of Cramer, Multhauf & Hammes LLP, Waukesha, represented Susan Foley-Ciccantelli and Dr. Mark Ciccantelli. Neal C. Schellinger of Schellinger & Associates, Waukesha, represented Bishop’s Grove and State Farm Fire and Casualty Co. John Ebbott of Milwaukee for Legal Action Wisconsin, Inc. filed an amicus curiae brief.