Who Gets to Select Your Lawyer?
The Wisconsin Supreme Court will decide whether you get to be represented by the attorney you choose when that attorney has previously represented a third-party witness to the litigation. In Foley-Ciccantelli v. Bishop’s Grove Condo Assoc., the District II Court of Appeals (which includes Waukesha County) was faced with a situation where the plaintiffs hired counsel of their choice to represent them in a slip and fall that occurred on Bishop’s Grove property. Unfortunately, that lawyer’s firm had previously represented the property manager for Bishop’s Grove condos. Although not a party, the property manager, as you can imagine, was a witness who would figure prominently in the litigation. The Wisconsin Law Journal has more detail on the facts of the case.
The issue, as phrased by the court of appeals, is:
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?
Moving for disqualification of the opposing party’s counsel is, unfortunately, not uncommon, but not generally successful. The Supreme Court will, hopefully, provide additional guidance to Wisconsin practitioners on this issue.
