Intervention
Case Analysis
Sept.
6, 2006
Although
the decision in this case bars the firm from intervening in its
former associate’s action to recover what it claims are fees
due it, the decision does not bar other firms from intervening
in future similar cases.
Most
important to note is the deferential standard of review the court
applied. Had the trial court granted the firm’s motion to
intervene, that decision would be entitled to the same deferential
standard of review.
Also
significant is that the firm in this case waited until eight months
after the case was dismissed before moving to intervene. Where
the firm files a more timely motion, this case may be distinguishable
on that basis.
Even
where a firm in a future case does wait eight months, however,
this is not fatal to the motion. Wisconsin case law is replete
with motions filed much later, but which were held timely, nonetheless.
In.
C.L. v. Edson, 140 Wis.2d 168, 409 N.W.2d 417 (Ct.App.1987), intervention
was allowed, although the intervenor did not seek intervention
until more than nine months after the case had settled. In Kornitz
v. Commonwealth Land Title Ins. Co., 81 Wis.2d 322, 260 N.W.2d
680 (1978), the intervenor waited more than three years after
the suit had commenced, and yet the motion was not denied as untimely.
Furthermore,
in many cases, the law firm will have good grounds for not seeking
intervention earlier. Suppose the firm and the attorney part on
what seems to be amicable terms.
Should
the firm be required to seek immediate intervention in the case
of every client that follows the departing attorney, in case a
dispute with the former associate arises later? A more reasonable
rule is to allow the firm to wait and see, and not hold it against
the firm that they did not follow this preemptive course.
A
rule that would require a firm to intervene in every case of the
departing attorney shortly after departure would impose an unnecessarily
burden on attorneys and the court.
In
addition, one fact will almost always weigh in favor of intervention
— the absence of prejudice to the parties. Since the subject
matter of the intervention is solely between a party’s attorney
and his former law firm, generally, neither the defendant nor
the plaintiff will be prejudiced by the intervention. Neither
the statute nor any case law provides that prejudice to a party’s
attorney is a proper factor for denying intervention.
Given
the deferential standard of review that is applicable to intervention,
the generous case law on timeliness, and the absence of prejudice
to the actual parties in cases such as this, the decision should
not be interpreted as precluding intervention in future cases,
even on very similar facts.
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David Ziemer
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David
Ziemer can be reached by email.
