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Keywords

lawsuitplaintifflitigationattorneyappealmotion

plaintiffdefendantlitigationattorneywill

Related Cases

Foley-Ciccantelli v. Bishop’s Grove Condominium Ass’n, Inc., 333 Wis.2d 402, 2011 WI 36, 797 N.W.2d 789

Facts

The plaintiffs, Susan Foley-Ciccantelli and Dr. Mark J. Ciccantelli, filed a personal injury lawsuit against Bishop's Grove Condominium Association following a slip-and-fall accident. The circuit court granted Bishop's Grove's motion to disqualify the plaintiffs' attorney, citing an appearance of impropriety due to the attorney's previous representation of the Foster Group, the condominium's property manager. The plaintiffs appealed the decision, leading to the Supreme Court's review of the standing and disqualification standards.

The plaintiffs purchased a condominium from Bishop's Grove on or about February 1, 2007. Thereafter, the plaintiffs, by their attorney, Timothy J. Andringa of Cramer, Multhauf & Hammes, LLP, brought a personal injury action against Bishop's Grove and Bishop's Grove's insurer, State Farm Fire & Casualty Co., stemming from the plaintiffs' 'slip-and-fall' injury on February 6, 2007, at Bishop's Grove's condominium complex.

Issue

1) Does a non-client party (Bishop's Grove) have standing in a civil action to move for the disqualification of the opposing party's attorney based on that attorney's prior representation of a non-party? 2) Did the circuit court err as a matter of law in applying an 'appearance of impropriety' standard in deciding the motion for disqualification?

Rule

A non-client party may establish standing to disqualify opposing counsel if the prior representation is so connected with the current litigation that it is likely to affect the just and lawful determination of the non-client party's position. Disqualification is warranted if the subject matter of the two representations is 'substantially related.'

A non-client party may establish standing, that is, may establish that a personal interest in the controversy is adversely affected and that judicial policy calls for protection of that interest, 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.

Analysis

The court determined that Bishop's Grove had standing to move for disqualification because the attorney's prior representation of the Foster Group was closely connected to the current litigation, potentially affecting the outcome. The court found that the circuit court applied an incorrect standard by relying solely on an appearance of impropriety rather than assessing whether the prior representation was substantially related to the current case.

We conclude that Bishop's Grove, the non-client defendant, has standing to move to disqualify opposing counsel. Bishop's Grove has shown that the plaintiffs' attorney's prior representation of the Foster Group and Wayne Foster 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.

Conclusion

The Supreme Court reversed the circuit court's order disqualifying the plaintiffs' attorney and remanded the case for further proceedings to determine whether the prior representation was substantially related to the current litigation.

Therefore, we cannot determine from the record before us whether the circuit court's order disqualifying the plaintiffs' attorney is erroneous when applying the correct standard. Accordingly, we reverse the order of the circuit court disqualifying the plaintiffs' attorney and remand the matter to the circuit court for such further proceedings as the circuit court determines are appropriate to resolve the question presented.

Who won?

The plaintiffs prevailed in the appeal as the Supreme Court reversed the circuit court's decision to disqualify their attorney, finding that the condominium had standing to challenge the representation but that the circuit court applied the wrong standard.

The Supreme Court, Shirley S. Abrahamson, Chief Justice, held that: 1 as a matter of first impression, condominium, not a former client of plaintiffs' counsel, had standing to disqualify plaintiffs' counsel based on plaintiffs' counsel's prior representation of non-parties, and 2 an attorney will be disqualified on the ground of the attorney's former representation of a client if the subject matter of the two representations is 'substantially related.'

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