Appeals Court: Pre-litigation Strategy Not a Basis for Judge’s Sanction Against Law Firm 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 11, 2012 – A state appeals court recently took extraordinary measures to stop a circuit court judge’s sanctions against the Milwaukee-based law firm of Godfrey & Kahn.

The District I Wisconsin Court of Appeals in Godfrey & Kahn S.C. v. Circuit Court for Milwaukee County, 2011AP921-W (Oct. 10, 2012), granted the law firm’s petition for writ of prohibition, barring Reserve Judge Dennis Flynn from imposing legal fees and costs against the firm.

“We conclude that a writ of prohibition, while a drastic remedy that should be used with caution, is appropriate here because the trial court lacked authority for the sanction and no other appellate remedy is realistically available to Godfrey & Kahn,” Judge Kitty Brennan wrote.

After a jury awarded former Midwest Air Group executive Christopher Stone $405,000 in damages for wrongful termination, Judge Flynn told Godfrey & Kahn, which represented Midwest Air Group, that it would be responsible for Stone’s legal fees and costs.

Judge Flynn was irked by the firm’s pre-litigation strategy, alleging the firm proceeded in bad faith by failing to provide Stone with all requested investigation reports that would help him defend against numerous allegations of sexual harassment. Stone was fired “for cause.”

Midwest Air Group engaged Godfrey & Kahn to assist in the investigation and advise the board on whether it had proper cause to terminate Stone’s employment.

Upon Stone’s request for investigation reports, Godfrey & Kahn lawyer Michael Huitink, on the client’s behalf, informed Stone that his employment contract did not require release of all reports, and sent Stone a final report that did not include interview summaries of those alleging sexual harassment. Judge Flynn took issue with this approach, alleging numerous firm attorneys engaged in a "systematic denial" of Stone's rights under the employment contract.

“It was the law firm that egregiously and intentionally, and without any sound legal basis, established the Kafkaesque procedures for Midwest’s termination of [Stone] for cause under the [employment] contract,” Judge Flynn stated in court proceedings.

Without addressing the merits of Judge Flynn's assertions against Godfey & Kahn, the appeals court explained that courts can’t invoke inherent authority to sanction lawyers for pre-litigation legal advice, noting that no case stands for the proposition that inherent authority can be invoked on those grounds. However, it left the question open for the future.

“Whether it is ever possible for pre-litigation conduct to justify the exercise of inherent power is an issue we do not reach because it is not necessary to our decision,” wrote Judge Brennan.