State ex rel. Dudek v. Circuit Court for Milwaukee County

• Decision Date: 09 May 1967
• Parties: , 35 A.L.R.3d 377 STATE ex rel. Edward A. DUDEK, Relator, v. CIRCUIT COURT FOR MILWAUKEE COUNTY et al., Respondents.
• Court: Wisconsin Supreme Court

Page 387

150 N.W.2d 387

34 Wis.2d 559, 35 A.L.R.3d 377

STATE ex rel. Edward A. DUDEK, Relator, v. CIRCUIT COURT FOR MILWAUKEE COUNTY et al., Respondents.

Supreme Court of Wisconsin.

May 9, 1967.

Frisch, Dudek, Banholzer & Slattery, Milwaukee, Edward A. Dudek, Milwaukee, of counsel, for relator.

Frank & Hiller, Milwaukee, Myron B. Katz, Milwaukee, of counsel, for respondents.

Gibbs, Roper & Fifield, Milwaukee, Clay R. Williams, Milwaukee, of counsel, amicus curiae.

BEILFUSS, Justice.

The issue, broadly stated is to what extent and under what conditions can an attorney for a party to an action be required to reveal his preparation for trial by means of a pretrial discovery deposition.

The relator, Mr. Dudek, has requested the court to review four problems: (1) the dual role of the lawyer in the adversary system, (2) the difference between the attorney-client privilege and the lawyer's work product protection, (3) the disclosure required by the attorney in this case, and (4) the burden of proof in attorney work product problems.

Our pretrial discovery examination statute, sec. 326.12 (now 887.12), was repealed and recreated by the legislature in 1961. Prior to recreation a party or an officer, agent, or employee could be adversely examined before trial. The statute after recreation provides that 'any party may examine any person, including a party' for discovery purposes. Thus the rights of any party to a pretrial discovery of relevant, non-privileged matters concerning the litigation have been greatly enlarged.

Secs. 887.12 and 269.57, Stats., which provide for the inspection of documents and property, now permit pretrial discovery in the Wisconsin courts analogous to the procedures in the federal system under Rules 26 to 37 of Federal Rules of Civil Procedure.

The significance of the federal rule changes was stated by the United States Supreme Court in Hickman v. Taylor, (1947), 329 U.S. 495, 500--501, 67 S.Ct. 385, 91 L.Ed. 451, as follows:

'The pre-trial deposition-discovery mechanism established by Rules 26 to 37 is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pretrial functions of notice-giving, issue-formulation and fact-revelation were performed primarily and inadequately by the pleadings. Inquiry into the issues and the facts before trial was narrowly confined and was often cumbersome in method. The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pre-trial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts no

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longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial.'

Let our first observation be that the ultimate objective of the adversary trial system and of pretrial discovery is identical. The ends of justice and civil peace are best served when our trial procedure results in an informed resolution of controversy. The basic objective of our trial system, then, is the ascertainment of the truth, whether by court or jury, on the basis of those factors legal and factual, best calculated to effect a decision which comports with reality. The thought, of course, is that justice can more likely be done if there is a preliminary determination of the truth of facts.

A second observation is that our liberal rules of pretrial discovery (and the attorney-client privilege for that matter) are meant to facilitate the job of the adversary system in accomplishing its objective. Pretrial discovery is designed to formulate, define and narrow the issues to be tried, increase the chances for settlement, and give each party opportunity to fully inform himself of the facts of the case and the evidence which may come out at trial. Thus the function of pretrial discovery is to aid, not hinder, the proper working of the adversary system.

The fundamental reason why our adversary system works well is that it contains built-in, you might say automatic, machinery which supplies the incentive to insure that the conduct of the participants always tends toward greater investigation and revelation of the objective truth. The motivation for winning the case and the motivation for thorough investigation, at worst, roughly parallel. The hope of victory at trial impels the diligence and industry of the attorney.

Involved in the case at hand is the problem of what protection the courts ought to accord to all of what is generally referred to as 'the work product of the lawyer.' In formulating rules concerning the discovery or nondiscovery of work product, a primary concern must be to preserve the lawyer's incentive to industry, the bedrock principle of the practical working of our adversary system of jurisprudence. Any rule which tends to diminish this incentive will necessarily diminish the aggregate investigation of facts by lawyers. This, in turn, will lessen the efficiency of the rational decision-making machinery of our adversary system. Effective trial preparation must be encouraged in order to enhance the prospects of an informed resolution of the controversy. Accordingly, we shun any rule which would tend to encourage indolence or laying back in pretrial investigation or which would tempt an attorney to unfairly conceal the results of investigations they have made.

Traditionally, in our adversary system, a lawyer occupies a dual role: he is the advocate of a party and an officer of the court. As we have stated, we believe that a lawyer's wholehearted representation of his client's cause is best calculated to bring about a just solution of litigation and that procedural rules should be structured so as to facilitate such vigorous representation. Yet the vigor of advocacy is not without limitation, for to use the adversary system to shield facts necessary to an enlightened decision would defeat the fundamental objective of the system. However attractive the uses of adversity may be, '(T)he conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness.' Canon 22, Canons of Professional Ethics. ¹ The dual role of a lawyer, as an advocate and an officer of the court is a requirement of the practical administration of justice. If lawyers do not conduct themselves with candor and fairness as officers of the court,

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decisions could be based on factors other than the merits. In addition to these two sometimes conflicting roles, we herein consider a third conflicting role, namely the lawyer as a witness. In resolving the conflicts that appear we should choose the path that fairly leads to the most enlightened decision on the merits.

With these preliminary basic considerations in mind, we turn to more specific problems of the action before us.

Mr. Dudek refused to answer several questions propounded to him and stated one of his objections to be that his answer would call for a privileged communication between client and attorney.

Sec. 885.22, Stats., embodies the rule that communications from a client to his attorney, and the attorney's advice to his client in the course of the professional relationship is privileged from disclosure unless the privilege is waived by the client or unless disclosure is required for the protection of the attorney, the client, or the client's interests. We first notice that the privilege protects 'communications,' not necessarily facts or evidence. The policy of this privilege was expressed by this court in Jacobi v. Podevels (1964), 23 Wis.2d 152, 156--157, 127 N.W.2d 73, 76;

'One of the fundamental policies of our law, and one which dominates in the absence of a special policy arising in particular types of situations, is that the judicial system and rules of procedure should provide litigants with full access to all reasonable means of determining the truth. Secrecy of communications between one person and his attorney is one of the exceptions. It is based upon recognition of the value of legal advice and assistance based upon full information of the facts and the corollary that full disclosure to counsel will often be unlikely if there is fear that others will be able to compel a breach of the confidence.'

The policy choice of the rule is clear. The administration of justice is thought best promoted by a rule which encourages clients to reveal the facts fully to their attorneys. By encouraging revelation of facts to the attorney, the privilege is also calculated to serve the basic objective of the jurisprudential system. Without the rule, parties would not reveal all of the facts because of a fear of detriment or embarrassment. It is better to have otherwise concealed facts within the knowledge of the person charged with the direction of the lawsuit, even though he must not reveal the communication, than to have those facts or opinions buried within the knowledge of the client. This is because the lawyer, by application of professional skill, can best make use of what he has learned has really happened and prepare proper defenses to aspects of the case detrimental to his client. Although the communication may not be revealed unless the client so wishes, the result of the privilege is a more informed resolution of controversy, at least in the aggregate number of cases.

Wisconsin, like most jurisdictions, has recognized only a narrow ambit to the communications included within the attorney-client privilege. Tomek v. Farmers Mut. Automobile Ins. Co. (1955), 268 Wis. 566, 569, 68 N.W.2d 573. This narrowness in...