Evans v. Cameron

Vaughn Attorney Conway It ordered is S. unprofessional publicly reprimanded conduct. days It is further ordered that within 30 of the date Vaughn Conway Attorney pay this order S. Attorneys Responsibility Professional the costs Board disciplinary proceeding $331.00, in the amount of provided paid if the costs are not the time within specified Conway showing by Attorney absent a and inability pay time, his the costs within Attorney Vaughn Conway practice law license of S. suspended further shall be until order Wisconsin of the court. Ceci,

Steinmetz JJ., dissent and would order the parties to file briefs on appropriateness the issue of the discipline the referee’s unprofes- recommended to the sional conduct. I. Evans,

Patricia Plaintiff-Appellant,

v. Cameron, Shervey, Howard Cameron Thrasher W. Doyle, Ltd., a corporation, & Wisconsin service Def endants-Respondents-Petitioners.†

Supreme Court Argued No. October 83-2148. 1984. January 3, 1985. Decided (Also reported 25.) 360 N.W.2d pending. Motion for motion de- † reconsideration This was not press. disposition cided at the time the volume Its will went reported later volume. petitioner, Cameron, For the Howard W. there were by Ryberg briefs J. Drew and Garvey, Anderson, Kelly S.C., Ryberg, Claire, argument & Eau oral J. Ryberg. Drew petitioner, Cameron,

For Shervey, Thrasher & Doyle, Ltd., argument by there was a brief oral Wilcox, Francis J. Eau' Claire. plaintiff-appellant

For the there was a brief and oral argument by Mason, Rapids. M. Wisconsin James

DAY, published J. This is a review of a decision of appeals1 reversing the court of an order the circuit county, Harry court for Barron Honorable F. Gunder- sen, judge county granting presiding, circuit for Burnett plaintiff’s complaint a motion to dismiss made under 802.06(2) (f), Stats., 1981-82,2 sec. for failure to state complaint a The issue on is: Should the claim. review against Attorney firm, his law Howard Cameron and alleging advice and that Patricia Evans followed his meeting lied first of creditors while under oath at the 1 (Ct. App. Cameron, Evans v. 2d 350 N.W.2d Wis. 1984). objection; presented; Defenses how when and and “802.06 by motion; judgment pleadings pleading . motion on the . or . except defense, Every fact, the (2) in or How law Presented. any pleading, improper venue, defense of to a claim for relief party cross-claim, claim, counterclaim, 3rd claim whether a responsive pleading if one is thereto shall be asserted the option following at required, except the that defenses (f) state a pleader by to ... failure of the be made motion upon granted. . . .” relief can be claim which bankruptcy proceeding in a and that she suffered dam- ages thereof, result a be dismissed for failure to upon granted? state a claim which relief can be We hold that should be dismissed for granted. failure to state claim which relief can be appeals therefore reverse the decision the court of We and reinstate the order circuit court. following allegations set out the

are relevant to this review: That licensed defendant attor- Howard Cameron “2. ney practice law State Wisconsin County, Lake,

who in Rice Barron resides Wisconsin. Cameron, Shervey, “3. Thrasher & That firm corporation . Doyle, Ltd., When matters Howard Cameron . . . is a service Wisconsin complained occurred, defendant of herein belief, was, upon and information corporation. a shareholder said service plaintiff December, “4. in the month of That defendant Howard conferred with [Patricia Evans] Cameron, Sher- in his offices Cameron office Wisconsin, Ltd., Lake, vey, regarding bankruptcy. dicated that Doyle, in Rice Thrasher & time, in- that At bankruptcy filing she was desirous of $10,000.00 approximately she had she indicated that cash which she wondered she filed protect if she could whether bankruptcy. plaintiff was informed gave say she Attorney were she Cameron mother, able money would be she money keep no one would care. plaintiff to do the the 1980, asked again 2, the “5. on June That Cameron, in case defendant, what Howard hearing up the $10,000.00 came cash matter of the advised and she was meeting of creditors of the first decided it had been worry, that she need not money mother her say the given had she was to and that it would she anyway. contention matter of not be a attorney, of said advise That [sic] “6. meeting creditors first at the plaintiff so answer did 2,1980. on June “7. aAs result date, of her answers on that and as a bankruptcy investigation result of the trustee’s money showed that that given amount of had never been plaintiff’s by plaintiff to going investigation plaintiff, mother is now under- possible prosecution and perjury. great “8. Plaintiff has suffered a deal of mental and emotional required distress and she has been to retain represent counsel to her in the defense of the aforestated perjury. Furthermore, bankruptcy “9. petition plain- of the tiff was dismissed. damages ‘TO. That all of these have been the result of wrongful illegal given plain- and advise to the [sic] by Attorney tiff Cameron. wrongful “11. That aas result of this and advise by counsel, only plaintiff her not [sic] is entitled compensatory damages, punitive actual and but dam- ages as well. “WHEREFORE, judgment against demands jointly severally the defendants the amount of $100,000.00 and, punitive thereto, in addition demands damages plus costs, $200,000.00 the sum of dis- attorney’s fees, bursements and as well as other just appropriate relief which is under the circum- stances.”3 opinion September 20,

In its memorandum should circuit court held the motion to dismiss granted that, be on the basis motion, parties purposes assumed true for order delicto. The circuit court filed an stood September 1983. opinion on consistent with that appeals May opinion 22, 1984, In court of its The court the order of the circuit court. reversed appeals reinstated should be stated only that can We conclude that reasonable inference Evans’ own from the is the one drawn drawn argument: she under oath when lied counsel Ms. Evans oral meeting of creditors. made her statement at the first 426 pur- assuming true for

because, rights against Mr. Cam- motion, poses Ms. Evans’ agreement firm stem from his law eron and his complaint legal makes provide advice because being allegations that, proven, in relief could result if accepted Evans, This court granted. 2d at 377. 119 Wis. Ms. Evans’ whether to determine this review alleging firm, that Ms. against and his Mr. Cameron following Mr. damage result of as a suffered Evans meeting first under oath at the to lie advice Cameron’s proceeding, a claim bankruptcy stated in the of creditors granted. could be upon relief complaint, respective In Ms. Evans’ their answers to deny any allegations firm Mr. and his law both Cameron wrongdoing. However, if to determine a claim a for failure to state should dismissed be granted under pursuant to a motion which relief can be pled are taken as 802.06(2) (f), Stats., the facts sec. respect be reached No inference can admitted. by judge alleged resolved until facts the ultimte 675, Co., 2d Ins. 85 Wis. jury. Anderson Continental v. motion purpose of the (1978). The 368 271 N.W.2d legal is to test a claim for failure to state to dismiss 2d at complaint. Anderson, Wis. sufficiency construed, liberally be pleadings are to Since 683. quite clear only “it is dismissed claim will Morgan recover.” can the no conditions under 723, 731, Co., 2d Pennsylvania 87 Wis. v. General Ins. Lowe, quoting, Clausen (1974), 275 N.W.2d Chapters Procedure, Civil Rules New Wisconsin (1976). 801-803, 59 Marq. L. Rev. is a potior conditio est In defendentis fault, the equal in the case which states doctrine v. stronger. Feld & Sons defendant position of the Etc., Pechner, Dorfman, Super. 125, n. 8 312 Pa. 139 denied, (1984); (1983), review v. 470 A.2d 525 Clemens Clemens, (1871). in 28 654 The of doctrine Wis. pari application public principle delicto is an of policy that aid man who will lend its to a “[n]o illegal his founds of action an immoral or cause Clemens, quoting, act.” Lord Mansfield Wis. Johnson, Cowper, Holman in v. 341. pari subject qualifica- in delicto is doctrine of

tions. parties in delicto “And indeed in cases both where concurring that act, always does not follow in an it be, they pari delicto; may in for there stand degrees guilt. are, very in One often different their party may oppression, im of act under circumstances inequality great position, of influence, hardship, undue guilt may age; far less his be so that condition or degree And his in the offense. than that of associate may part itself besides, of the court be on the there public necessity policy many cases, supporting public interests or of acts of reprehensible the however Dorfman, Pechner, parties may Feld v. be.” & Sons Story Equity quoting, Etc., (1983), Super. at 131 312 Pa. Jurisprudence 1918). (14th ed. § of Her act was in It is clear that Ms. Evans delicto. bankruptcy proceeding lying in the oath while under is whether illegal. At issue was immoral and both accepted true allegations complaint, of her pari with delicto motion, place her purposes of this complaint. We requiring of dismissal Mr. Cameron place Evans Ms. do conclude that those pari delicto with Mr. Cameron. op- alleged any of

Ms. circumstances Evans has not great influence, pression, imposition, hardship, undue Evans inequality Instead of condition or the like. argues right rely advice on the has a client case, this of attorney. In the circumstances argument persuasive. is not given

There be circumstances in the advice complex an is so the client would be wrongfulness in following unaware of the involved weight may In circumstances, advice. such more given to the an influence will have over the client and the amount reliance which the client can attorney. justifiably wrongfulness place lying oath, apparent. however, while under Absent allegation constituting special some exception circumstances independent of in

to the rule attorney-client relationship, the client’s deliberate act lying pari places that in under oath client with of that lie. who advised client to the Given that Ms. Evans and Mr. Cameron would be pari complaint, delicto if the of the assumed merely true purposes motion, proven, for this the point may second of concern is whether “there be on part necessity the supporting the court itself a public public the policy rep- . . interests . however parties rehensible the the be.” acts of We conclude overriding public policy that no such interest exists in Although public case. the interest served discouraging attorney misconduct, inappro- it would be priate promote to by removing that interest damage deliberately to willfully those who lie under oath bankruptcy proceedings. A court should not encour- age illegal others to commit upon lawyer’s their acts by allowing advice perpetrators to believe that a against suit will allow them to obtain re- damage they might lief from caught. suffer The attorney’s advising perform clients misconduct to illegal discouraged by acts should be the threat of attor- ney disciplinary action. only which we discovered which other case have

The presented as here reaches presents the issue same Pechner, In Feld & Sons v. conclusion. same Dorf sought compensatory puni man, Etc., plaintiffs profes damages firm defendant law from the tive plaintiffs allegedly malpractice. suffered dam sional ages following law firm a the advice result of potential falsify a perjury, and offer commit exhibits against proceedings witness them bribe before Sons, Relations Pa. National Labor Feld & Board. Super. Superior Pennsylvania up at 127. Court of held trial dismissal of the on court’s plaintiffs demurrer with modification to allow legal paid recovery seek fees defendants.4 Sons, Super. Pa. Feld 127-128. & Pennsylvania sought Because the court avoid the public policy determinations involved the doctrine of upon delicto, rely it did not In doctrine. upheld stead the dismissal of the general upon principle based will more no court person grounds aid its to a who his action lend Super. Sons, immoral or Pa. act. Feld & 137-138. general in Feld &

Under the more doctrine used Sons pari delicto, in the in- the result the doctrine of in policy is the determinations stant case same. Public 4 (1983), Sons, Super. 125, 141 n. In & Pa. 139 Feld 312 Pennsylvania (1984), in denied, review 525 470 A.2d proposition terpreted standing an attor Berman as ney may keep gotten money a client violation not from Pennsylvania attorney’s obligations. court there professional exception that should with the order dismiss fore affirmed the plaintiffs allegations, plaintiffs recover prove alleged not any legal paid Evans has firm. Since fees to the law firm, issue payment any this his to Cameron and fees case. need not be reached 430

implicit in the equitable invocations of either doctrines. Harrington, Evans relies Ford v. 16 N.Y. (1857) and Berman Coakley, v. 243 Mass. 348 (1923). In Berman, both plaintiff sought Ford and property restitution of attorney transferred to the as a result of an transaction entered into on the attor- ney’s In granted. advice. both cases restitution was distinguishable These cases are from the instant case. alleged Ms. Evans has not that Mr. Cameron has re* expense. ceived benefit at her attorney If an has expense benefitted at the of a client who followed the attorney advice of that illegal act, an committed pari apt applied. doctrine of delicto is less to be greater possibility This is because of the of undue in- fluence receives a benefit and because policy to not allow to benefit from such misconduct.5 appeals reversing

The court of the order to dismiss primarily upon relied this court’s decision in Clemens v. Clemens, (1871). Evans, Wis. 637 2dWis. Clemens, 377. In a father transferred land to his son attempt in an to defraud creditors. The father then brought against an action the son to recover the trans- property including ferred property homestead which the mistakenly father exempt and which was transferred Clemens, from creditors’ claims. at 641. Wis. This court reviewed the trial court’s determination that title mistakenly to the property transferred homestead should vest in the father.

This court affirmed the trial court’s decision for two First, conveyance reasons. the court held that a to de- creditors, although fraud invalid creditors, as to the was valid parties. between the The rule of in apply could not as to parties actions between those 5 See Footnote 4. father, therefore, to the same relief “entitled was property], forty respect to the east [homestead

with in insertion ground in its of mistake or fraud on the the character of deed, had not as if such been Clemens, conveyance.” at 652. Wis.

Second, in even if father and son were conveyance property, as to the non-homestead conveying plaintiff intention of the “[t]he [father] by forty creditors, no on acres to defraud his would means, justify morals, or in defendant either law gross upon plaintiff practicing a fraud [son] forty procure from him title of other [home- retaining it, conveyed property], title or if stead Clemens, mistake.” 28 Wis. 652-653. distinguishable Clemens sufficiently is to make its particular holding inapplicable First, to the instant case. allege any part did not mistake on the Second, of Ms. Evans. Clemens involved a claim for property restitution of transferred under the contract. alleged In this case Ms. not Evans has Mr. Cam- Finally, eron in- has received Clemens benefit. except a claim which volved contract was valid damages case, In to creditors. the instant Ms. Evans’ Although inseparable illegal from her own conduct. allegedly Cameron for fur- she had a contract with Mr. nishing legal advice, right, she had no under the contract bring damages otherwise, she an action for Her dam- a result of her own conduct. suffered as alleged ages but from not from the contract did stem her own act. deliberate complaint, proven,

Because the in Evans’ pari delicto, quite parties “it show the to be would can the recover.” that under no conditions clear appeals The decision of the of which reversed dismissing the order of circuit court is reversed.6 Ap-

BY THE COURT.—The decision of the of Court peals is reversed. ABRAHAMSON, (dissenting).

SHIRLEY S. J. I do not think this court can conclude on the basis the com- plaint that as matter of law the inis attorney. delicto with the I would remand for a trial. BABLITCH, A. WILLIAM (dissenting). J. solemnly

“I do swear: “I any defense, will not . except counsel. . such as I honestly believe to be debatable under the law of the land; employ, only “I will . . . such means as are consistent with honor, truth and and will never seek to mislead jury judge by any . . . false statement fact help

“So me God.” OATH

ATTORNEY’S giving fully opportunity heard, Without her an to be majority opinion day denies Ms. Evans her court.1 6 Contrary statement in Justice dissent Bablitch’s majority opinion day (Dis “the Ms. Evans her court” denies senting op., 432, infra.), days p. Evans has had three Ms. court; court, appeals, one in the trial one the court of and one in majority agreed this court. A court has with the trial this attempts money complaint, court that Evans’ to recover acting illegal, placed in a manner both immoral and has position equity profiting by in a under such where rule permitted. conduct should not be six, disputes majority, opinion state The in footnote court; days by saying has had three ment that “Ms. Evans cursorily dispenses im- with the majority opinion in cases that exist

portant public policy considerations (that involving misconduct and client both simply presumes an recognized), and courts have other a client. an equality relationship between majority respects, Having these in both failed contrary to sound unjust which is result reaches Accordingly, I public policy. dissent. state, majority opinion, for the first time in this

applies pari “in delicto” motion doctrine of on a to the doctrine, complaint; applies the for the first dismiss a it state, attorney-client reported to an time in this re- lationship; the rules under which the doc- it announces applies; then the defendant that be- trine and it tells rules, complaint to follow those she’s out cause her fails court, will not heard. of she be opinion majority correctly doc- states the pari subject qualifications. trine of in delicio is P. to supra. party one When acts under “circumstances oppression, imposition, influence, hardship, undue great inequality age”, guilt of condition or his or her may degree far be less in than that of his associate court, appeals, one in the trial one in the court of and one in this supra, Cameron, majority p. 432, court.” Evans op., n. 6. The v. issue, notwithstanding protestations majority opinion, the in court, appeals court, the trial and in this is whether get complaint Ms. fully Evans can into court to her have heard. opportunity present merits, She has not had an to her case on the opportunity she put has not had the to flesh on the her bones of complaint might Attorney indicate that Cameron’s activities egregious (or, majority says, were more more “immoral illegal”) majority simply says, Instead, than her’s. presumably effect, lied, oath, she under and those actions are utterly nothing Attorney so immoral Cameron majority opinion could have done or be worse. The said could may right, wrong, be it but until know more we’ll be we guarantees opinion majority never we’ll never know know. The more. 434 427, supra (citing Pech P. Feld & Sons v. offense. 125, 131,

ner, Dorfman, Etc., Super. Pa. A.2d Jurisprudence Story, Equity (1983) (quoting, sec. (14th 1918)). ed. However, majority upholds then the trial court’s complaint, asserting dismissal of her that Ms. Evans allege any failed to of these circumstances in her com- “ plaint. majority concludes that bsent some alle- [a] gation special constituting circumstances ex- ception pari to the independent rule of attorney-client relationship, client’s deliberate act lying places under oath that client in delicto with who advised the to lie.” P. client supra. How was Evens know that to she was required allege these circumstances her given post ex majority’s opinion? nature of the facto have, prior What reason did law, she based on case allege believe that she needed to these ? At circumstances very least, ought Ms. Evans allowed to amend allege order circumstances might exception constitute an to the doctrine announced today. yet reason,

There equity, is another unmentioned by majority, why the application of this doctrine is inappropriate stage proceeding. at of the That public policy. is reason here there elements “[W] public policy outraged by more the conduct of one than other, may equity granted then relief be guilty.” 348, 350, Coakley, the less Berman v. 243 Mass. (1923). 137 N.E. public policy

The at stake in this case is the standard of conduct should be demanded to the client as public. well as to Inasmuch as this case is before this court on a review of a motion claim, dismiss for failure to state a we must assume that lied, Ms. Evans and all likelihood she was under However, oath at time. we also must assume counsel, given her lies were at the advice of her to her separate occasions, by on two followed assur- counsel’s prevarications ances that her not would be of conse- quence. majority

The would be well advised to reflect on the Rugg words of in Berman in Chief Justice which the apply court in a Massachusetts refused to this doctrine involving suing attorney: similar case a client his public deep “The have a and vital interest in his integrity, importance profound It is a matter of [citations omitted] every point from of view that members of the maintain probity rectitude, jealous bar be men of and honesty relations of utmost with their clients wrong. protect legal and against solicitious to them Unflinching fidelity genuine duty to their interests is the every attorney policy hardly to his clients. Public can general touch matters more than the mainte- concern by nance of an torney at- untarnished standard of conduct at client law toward The his client. length. do not deal other at arms’ client with each The many respects powerless often in- is in resist vicious, attorney. fluence of his If that influence be untoward, criminal, becomes a source of the relation of trust is abused wrong.” Id. at 137 N.E. (Emphasis added.) 670-671. “ plain- went on Berman to state that he [t] tiff and [attorney] defendant were not delicto. justly Whatever said condemnation necessary of the acts of the is less than is touching [attorney] the acts of the Id. at defendant”. 355, 137 N.E. at 671. majority’s position into fails to take account attorney-client relationship.

realities of It overlooks ,ivery “great inequality nature and of condition” frequently relationship built into the virtue attorney’s knowledge and the trust. client’s Attorney alleges Cameron Evans in her that protect from bank- told her she would be able to that ruptcy proceedings $10,000 possessed if in cash she gave money that she to mother. she told Attorney care”. that “no one would Cameron assured her lying court, apprehensive to Ms. Evans was about again Attorney need advised her but Cameron “she worry” a of con- not “it would not be matter lying anyway.” apprehensions Ms. Evans’ about tention she trusted to were met with the assurances of one Despite this, protect law and to her interests. know the allowing majority finds, Ms. Evans the without fully opportunity heard, Evans and her that Ms. to be equally is told the ma- were fault. She jority Attorney his attor- violations of Cameron’s ney’s court, oath, duty of his to his violations client, duty could all of which his violations of his his disciplinary subject action as crim- him to serious as well prosecution, equally her own are as offensive as inal following his advice. actions By denying opportunity fully Ms. Evans the by presuming equality relationship heard and an be- client, majority tween an and the reaches unjust contrary public result which is also to sound policy. I dissent.

(In fairness Attorney Cameron, important it is note that allegations he denies all of the of Ms. Evans’ complaint. However, purposes action, of this we must assume the of Ms. Evans’ alleges true. She Attorney on two occasions Cam- bankruptcy matter.) eron advised her to lie I am authorized to state that CHIEF JUSTICE joins NATHAN HEFFERNAN in this dissent.

Case Details

Case Name: Evans v. Cameron

Court Name: Wisconsin Supreme Court

Date Published: Jan 3, 1985

Citation: 360 N.W.2d 25

Docket Number: 83-2148

Court Abbreviation: Wis.