Former law
firm denied intervention
By
David Ziemer
Wisconsin Law Journal
Sept.
6, 2006
|
What
the court held
Case:
Lonergan v. Employers Mut. Cas. Co., No. 2005AP1959
Issue:
Did the trial court properly exercise its discretion in
not allowing the former law firm of the plaintiff’s attorney
to intervene to collect what it claims is its share of attorney
fees?
Holding:
Yes. The firm waited until eight months after the action
was dismissed to intervene, and it has other avenues available
to protected its claimed interest.
Counsel:
Terry E. Johnson, Milwaukee, for appellant; James J. Gende,
Waukesha, for respondent.
|
It
was a proper exercise of judicial discretion to deny a law firm’s
motion to intervene in a closed case handled by a former associate,
the Wisconsin Court of Appeals held on Aug. 29.
James
J. Gende was employed as an associate by Cannon & Dunphy,
S.C. until April 2004. When he left Cannon & Dunphy, a number
of clients went with him, including Kelly S. Longergan, who was
pursuing a personal injury action against Employers Mutual Casualty
Company, and its insured, Marganne K. Lamar.
The
case settled in May 2004, and was dismissed in July. In March
2005, Cannon & Dunphy moved to intervene in the action, but
Milwaukee County Circuit Court Clare L. Fiorenza denied the motion.
Cannon
& Dunphy appealed, but the court of appeals affirmed in a
decision by Judge Ralph Adam Fine.
Rule
803.09(1) provides, “Upon timely motion anyone shall be permitted
to intervene in an action when the movant claims an interest relating
to the property or transaction which is the subject of the action
and the movant is so situated that the disposition of the action
may as a practical matter impair or impede the movant’s ability
to protect that interest, unless the movant’s interest is
adequately represented by existing parties.”
The
court acknowledged that Cannon & Dunphy “claims an interest
relating to the property or transaction which is the subject of
the action.” However, the court found that none of the other
requirements were met.
The
court noted that Cannon & Dunphy did not seek to intervene
in the action until eight months after the action was dismissed;
thus the motion was not timely.
The
trial court rejected the firm’s argument that it did not
know of the settlement until it filed the motion to intervene.
Because the firm knew that Lonergan ended her attorney-client
relationship when Gende left the firm, the court concluded that,
even if there was no knowledge of the settlement, the firm knew
there was an issue with respect to payment of fees and costs in
the case.
The
court also found that the firm had other avenues available to
protect its claimed interest, because Gende and the firm are currently
litigating issues involved in Gende’s departure from the
firm, and the dispute can be resolved in that action. Also, the
firm can file an action to enforce any attorney lien it may have
under sec. 757.37.
The
trial court had noted that, because there were many former client
cases involved in the firms’ dispute with Gende, “the
most judicial way to proceed is to have one judge decide the issue
regarding the separation agreement.”
Giving
substantial deference to the trial court’s determinations,
the court of appeals concluded that the trial court properly considered
the appropriate factors, and affirmed.
It
is noteworthy that a different panel of the court of appeals also
issued a decision last week affirming a circuit court’s denial
of a motion by Cannon & Dunphy to intervene in another of
Gende’s cases, but did not recommend that opinion for publication.
Olivarez v. Unitrin Property & Casualty Ins. Co., No. 2005AP2471.
Like
the court in the case at bar, the court concluded that the firm
has other means to protect its interest.
However,
the court also emphasized the broad discretion that a circuit
court has: “Were the question one of law, or were we ruling
in the first instance rather than as an appellate body, we likely
would rule for Cannon & Dunphy. But given the deference we
must accord the trial court’s discretionary call, we are
constrained to affirm the trial court’s ruling.”
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David
Ziemer can be reached by email.
