Foley–ciccantelli v. Bishop's Grove Condo. Ass'n Inc.

• Citation: 2011 WI 36,797 N.W.2d 789
• Decision Date: 24 March 2011
• Docket Number: No. 2009AP688.,2009AP688.
• Parties: Susan FOLEY–CICCANTELLI and Dr. Mark J. Ciccantelli, Plaintiffs–Appellants,v.BISHOP'S GROVE CONDOMINIUM ASSOCIATION, INC. and State Farm Fire & Casualty Company, Defendants–Respondents.
• Court: Wisconsin Supreme Court

797 N.W.2d 789

2011 WI 36

Susan FOLEY–CICCANTELLI and Dr. Mark J. Ciccantelli, Plaintiffs–Appellants,

v.BISHOP'S GROVE CONDOMINIUM ASSOCIATION, INC. and State Farm Fire & Casualty Company, Defendants–Respondents.

No. 2009AP688.

Supreme Court of Wisconsin.

Argued Oct. 6, 2010.Decided March 24, 2011.

For the plaintiffs-appellants there was a brief and oral argument by Timothy J. Andringa, Cramer, Multhauf & Hammes, LLP, Waukesha.For the defendant-respondents there was a brief and oral argument by Neal C. Schellinger, Schellinger & Associates, Waukesha.An amicus curiae brief was filed by John F. Ebbott, Milwaukee for Legal Action of Wisconsin, Inc., and oral argument by John F. Ebbott.SHIRLEY S. ABRAHAMSON, C.J.

¶ 1 This is an appeal from an order of the Circuit Court for Waukesha County, Kathryn W. Foster, Judge, on certification by the court of appeals pursuant to Wis. Stat. § 809.61 (2007–08).¹

¶ 2 The circuit court granted the motion of Bishop's Grove Condominium Association, Inc., the defendant, to disqualify the attorney representing Susan Foley–Ciccantelli and Dr. Mark J. Ciccantelli, the plaintiffs, in their personal injury slip-and-fall action against the defendant.² The motion made no allegation of unethical conduct. The circuit court concluded that the plaintiffs' law firm did not engage in any unethical conduct of any kind. The instant case is not a determination of unethical conduct. Violations of the Code of Professional Conduct are determined only by means of disciplinary action. This is a disqualification proceeding, not a disciplinary proceeding.

¶ 3 The circuit court determined, however, that the attorney's law firm had previously represented Bishop's Grove's exclusive property manager, the Foster Group, Ltd., and Wayne Foster, the principal in the Foster Group; that the attorney had communicated with Wayne Foster in regard to the present case; and that the attorney's representation of the plaintiffs in the present case created an appearance of impropriety.

¶ 4 The court of appeals certified two questions. The first addresses whether Bishop's Grove has standing to bring a motion to disqualify plaintiffs' attorney:

(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 ³ based on that attorney's prior representation of a non-party (The Foster Group and Wayne Foster)? ⁴

¶ 5 There is no single longstanding or uniform test to determine standing in the case law. Courts have inconsistently used a variety of terminologies as tests for standing. Therefore, as a prerequisite to answering the first question, we review the law of standing. Upon careful analysis of the case law, it is clear that the essence of the determination of standing is: (1) whether the party whose standing is challenged has a personal interest in the controversy (sometimes referred to in the case law as a “personal stake” in the controversy); (2) whether the interest of the party whose standing is challenged will be injured, that is, adversely affected; and (3) whether judicial policy calls for protecting the interest of the party whose standing has been challenged.

¶ 6 These three aspects of standing do not necessarily eliminate the various tests that have been applied in administrative review cases, in constitutional law cases, and in declaratory judgment cases. These various tests, while at times inconsistently used by courts, when appropriately used in particular types of cases are tools for determining personal interest, adverse effect, and judicial policy, the three essential aspects of standing. When a statute, rule, or constitutional provision is at issue, a court determines these three aspects of standing by examining the facts to determine whether an injured interest exists that falls within the ambit of the statute, rule, or constitutional provision involved that judicial policy calls for protecting. When no statute, rule, or constitutional provision directly governs the standing analysis, a court determines these three aspects of standing by examining the facts to determine whether an injured interest exists that falls within the ambit of relevant legal principles that judicial policy calls for protecting. The present case falls within the latter group of cases.

¶ 7 We address the first question relating to standing in light of our analysis of the standing cases. We conclude that as a general rule only a former or current client has standing to move to disqualify an attorney from representing someone else in a civil action. Nevertheless, 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.

¶ 8 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.⁵

¶ 9 Because we conclude Bishop's Grove has standing to bring a motion for disqualification in the present case, we next address the second question presented:

(2) Did the circuit court err as a matter of law in applying an “appearance of impropriety” standard in deciding the motion for disqualification? If so, what is the correct standard?

¶ 10 In answer to this question, we conclude that the circuit court applied an incorrect standard of law in disqualifying the plaintiffs' attorney, namely, disqualifying the plaintiffs' attorney on the basis of an “appearance of impropriety.”

¶ 11 The appropriate standard a circuit court applies to determine a motion for disqualification of counsel based on an attorney's duty to a former client is guided by SCR 20:1.9. A circuit court must determine: (1) whether there was an attorney/client relationship between counsel and the former client and whether it is over; (2) whether the subsequent representation involves the same or a substantially related matter as the former representation; (3) whether the interests of the subsequent client are materially adverse to those of the former client; and (4) whether the former client consented to the new representation.

¶ 12 In the present case, it is necessary to determine whether the current and former representations involve a substantially related matter and whether the interests of the plaintiffs are materially adverse to those of the former clients, the Foster Group and Wayne Foster.

¶ 13 Given the paucity of facts in the affidavits in the record relating to the attorney's prior representation of the Foster Group and Wayne Foster, we are unable to determine whether the two representations involve substantially related matters and whether the interests of the plaintiffs are materially adverse to the former clients' interests.

¶ 14 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.

I

¶ 15 The factual background presented in this appeal can be simply stated.

¶ 16 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. The allegation in the complaint is that the slip and fall occurred on common property owned by Bishop's Grove at an accumulation of ice resulting from negligently maintained rain gutters.

¶ 17 The Foster Group is “the exclusive managing agent” under a management agreement between Bishop's Grove and the Foster Group (a copy of which is in the record). Under the management agreement, the Foster Group is to, inter alia, “cause the buildings, appurtenances, and grounds of the condominium to be maintained according to the standards acceptable to the association.”

¶ 18 According to the plaintiffs, Bishop's Grove's liability in the slip-and-fall case might arise from the acts or omissions of the Foster Group in maintaining the common property at Bishop's Grove.

¶ 19 Neither Wayne Foster nor the Foster Group is a party in the slip-and-fall action. However, the plaintiffs and Bishop's Grove view Wayne Foster as a likely witness in the slip-and-fall case. The Foster Group, as real estate property manager, is an insured under State Farm's comprehensive business liability policy issued to Bishop's Grove. The same defense counsel in this slip-and-fall case represents Bishop's Grove and the insurance company. ⁶

¶ 20 Bishop's Grove's counsel filed a motion for disqualification of plaintiffs' attorney upon learning that the Foster Group and Wayne Foster had been represented by the plaintiffs' attorney's law firm (the Cramer firm) in the past. The plaintiffs and Bishop's Grove submitted affidavits and briefs in support of their respective positions on the motion for disqualification.

¶ 21 Wayne Foster's affidavit describes the relationship between the Cramer firm and the Foster Group and himself as follows:

3) Peter Plaushines [an attorney with the Cramer firm] has represented the Foster Group Ltd. for over...