Foley-Ciccantelli v. Bishop's Grove Condominium Ass'n
797 N.W.2d 789
Wis.2011Background
- Bishop's Grove Condominium Association moved to disqualify plaintiffs' attorney in a slip-and-fall action.
- Circuit court disqualified the plaintiffs' attorney based on appearance of impropriety, without findings of unethical conduct.
- Plaintiffs' attorney previously represented Bishop's Grove's exclusive property manager (The Foster Group) and Wayne Foster (non-parties).
- Foster and Foster Group may be witnesses; plaintiffs and Bishop's Grove viewed Foster Group as insured under State Farm's policy.
- Court of Appeals certified two questions: (a) standing of a non-client to move for disqualification based on prior representation of non-parties; (b) correct standard for disqualification; lead opinion reversed on standard and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of a non-client to seek disqualification | Bishop's Grove has standing due to connection with prior representation. | Plaintiffs lack standing; no direct injury or legally protected interest. | Bishop's Grove has standing to move for disqualification. |
| Correct legal standard for disqualification | Substantially related standard governs disqualification; appearance is too weak. | Appearance of impropriety should be the standard for disqualification. | Substantially related standard applies; appearance of impropriety is not controlling. |
| Record insufficient to decide substantially related/adverse interests | Remand to circuit court to determine substantial relation and material adversity with proper record. | ||
| Scope of application of SCR 20:1.9 to non-clients | SCR 20:1.9 provides basis for standing for non-clients in this context. | SCR 20:1.9 does not create standing for non-clients absent a related attorney-client interest. | Court applies substantially related standard; record insufficient to decide conclusively on SCR 20:1.9 issues. |
Key Cases Cited
- Forecki v. Kohlberg, 237 Wis. 67 (Wis. 1940) (standing principle; only client may object in Forecki; support for liberal standing notion)
- Berg v. Marine Trust Co., 141 Wis. 2d 878 (Wis. Ct. App. 1987) (developed substantial relationship test for disqualification)
- City of Madison v. Town of Fitchburg, 112 Wis. 2d 224 (Wis. 1983) (standing analysis in declaratory judgments; personal stake and legal interest)
- Fox v. DHSS, 112 Wis. 2d 514 (Wis. 1983) (two-part standing test; injury and legally protectable interest)
- First Nat'l Bank of Wis. Rapids v. M&I Peoples Bank of Coloma, 95 Wis. 2d 303 (Wis. 1980) (two-part standing analysis; injury and legally protected interest)
- Waste Management of Wisconsin, Inc. v. DNR, 144 Wis. 2d 499 (Wis. 1988) (standing tied to legally protected interests; administrative context)