WISCONSIN COURT OF APPEALS
Susan Foley-Ciccantelli and Dr. Mark J. Ciccantelli,
Bishop’s Grove Condominium Association, Inc and State Farm Fire & Casualty Company,
JAN 27, 2010
David R. Schanker
Clerk of Supreme Court
CERTIFICATION BY WISCONSIN COURT OF APPEALS
Before Neubauer, P.J.,
Pursuant to Wis. Stat. Rule 809.61 (2007-08) this court certifies the appeal in this case to the Wisconsin Supreme Court for its review and determination.
This case involves the right of a party to be represented by counsel- of-choice in a civil lawsuit, the right of retained counsel to represent a party in a civil lawsuit, and the judicial right and authority to intervene. In other words:
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?
Susan Foley-Ciccantelli and Mark Ciccantelli appeal from an order disqualifying their attorney from representing them in a personal injury suit. The Ciccantellis purchased a condominium from Bishop’s Grove Condominium Association, Inc. in February 2007. Shortly thereafter, while walking near the garage, Susan slipped on a patch of ice and fractured her ankle. The Ciccantellis sued Bishop’s Grove, alleging that the patch of ice formed due to negligent maintenance of a leaky gutter above the walkway. They alleged that Bishop’s Grove had a duty to maintain the gutter pursuant to Bishop’s Grove declaration documents. The Ciccantellis also sued State Farm Fire & Casualty Company, the liability insurer for Bishop’s Grove.
The Ciccantellis identified Wayne Foster as the registered agent for Bishop’s Grove. They alleged that Foster Group Ltd., as property manager for Bishop’s Grove, notified State Farm of the incident. They referred to and attached a May 1, 2007 letter written by Foster to advise State Farm that Bishop’s Grove was responsible for maintenance of the driveway and the building exterior. The Ciccantellis then named Foster as a witness.
Bishop’s Grove moved to disqualify the Ciccantellis’ attorney, Timothy Andringa of Cramer, Multhauf & Hammes, LLP (Cramer). With its motion, Bishop’s Grove included an affidavit by Foster who attested that, as the principal of Foster Group, he had been represented by the Cramer firm. Foster attested that, as Foster Group’s counsel, Cramer had “drafted condominium documents and provided advice and counsel regarding all aspects of condominium development in prior years.” Bishop’s Grove also submitted a copy of the “Management Agreement” it had with Foster Group, which appointed the Foster Group as “exclusive managing agent of the [Bishop’s Grove] condominium.”
The Ciccantellis responded that Cramer’s representation of the Foster Group was on matters unrelated to the current dispute with Bishop’s Grove. They also asserted that Bishop’s Grove was not a former client of Cramer and therefore had no standing to request disqualification.
The circuit court agreed with Bishop’s Grove that Cramer should be disqualified. It stated that “even though the Foster group or Wayne Foster individually is not named as a party,” Foster did have an “important role in the resolution” of the lawsuit and had taken the “unusual” step of interceding with the insurance adjuster to offer a legal opinion. The Ciccantellis petitioned for leave to appeal, which we granted.
The general rule regarding attorney disqualification
states that “where an attorney represents a party in a matter in which the
adverse party is that attorney’s former client, the attorney will be
disqualified if the subject matter of the two representations are
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.
Two competing legal precepts apply. First, courts have recognized that litigants
have a strong interest being represented by counsel of their choice. See
v. Marine Trust Co., 141
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in … a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in a writing signed by the client.
We have held that “[a]ttorneys are
obligated to avoid even the appearance of impropriety.” City of
Early case law supports the proposition that only a former
client has standing to complain of an attorney’s representation of an
adversary. First, in Forecki v. Kohlberg, 237
Forecki was cited with approval in In re
the Disciplinary Matter of Marine, 82
More recently, we held that “only an attorney’s former
client is entitled to object when that attorney represents interests adverse to
him or her.” Gieseke v. DOT, Div. of Highways,
However, some cases suggest that a person other than the
former client may raise the objection.
In Rose K., the attorney was serving as guardian ad litem in a
CHIPS proceeding against a father who the attorney had previously prosecuted in
a paternity suit. Rose K., 196
Another twist on the topic occurred in Burkes
v. Hales, 165
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? In each of the cases
mentioned above, the conflict of interest resulting in disqualification
involved an attorney-client relationship with a party to the lawsuit. Furthermore, the objection was raised by a
party to the lawsuit. In Forecki,
it was Kohlberg who asserted that the attorney representing both Forecki and a
co-plaintiff, whose interests were adverse on some issues, should be
disqualified. See Forecki, 237
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
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 We are mindful of the statutory protection afforded attorney-client communication:
(2) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: between the client or the client’s representative and the client’s lawyer or the lawyer’s representative; or between the client’s lawyer and the lawyer’s representative; or by the client or the client’s lawyer to a lawyer representing another in a matter of common interest; or between representatives of the client or between the client and a representative of the client; or between lawyers representing the client.
(3) Who may claim the privilege. The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. The lawyer’s authority to do so is presumed in the absence of evidence to the contrary.
Wis. Stat. § 905.03(2) and (3).