PECK v. MEDA-CARE AMBULANCE CORP.

FINE, J.

There are two dispositive issues on this appeal: first, whether an attorney is per se liable to his or her client for violation of the rule that generally prohibits a lawyer from testifying for the client; and second, whether the forfeiture of attorney fees directed by the trial court was an appropriate exercise of judicial authority. The trial court answered these questions in the affirmative. We reverse. Additionally, the appellant contends that the respondents' position is frivolous and that, accordingly, he is entitled to "costs and reasonable attorney's fees on this appeal" pursuant to sec. 814.025, Stats. We disagree.

I.

Barton M. Peck brought this action seeking to recover attorney fees for legal services he performed for Meda-Care Ambulance Corp. in connection with certain labor relations matters. In their answer and counterclaim, the defendants asserted various defenses, including Peck's alleged malpractice in one of the matters because he both represented Meda-Care before a National Labor Relations Board administrative law judge, and testified before the administrative law judge in that matter on Meda-Care's behalf. The defendants moved for partial summary judgment on this defense, seeking, inter alia, a determination that Peck violated SCR 20.24 and SCR 20.25 of the Code of Professional Responsibility (Callaghan 1986), and that this was negligence per se.1 The motion was denied by the trial court, the Honorable Patricia S. Curley presiding.

Following judicial rotation, see SCR 70.23(3), this case was reassigned to the Honorable Patricia D. McMahon, and was tried to a jury. The jury, by a vote of ten to two, found that Peck did not "fail to exercise reasonable care in representing the defendants," and awarded him $8,962.06 as the "reasonable value of the legal services" he performed for the defendants during the relevant time period. Judge McMahon set aside the verdict as "perverse," and ordered a new trial.2 The trial court reasoned that expert testimony was necessary on the issue of whether an attorney has conformed with the applicable standards of care, and that the only expert who testified at the trial had concluded that Peck did not conform to those standards because he failed to withdraw as the defendants' attorney when he knew he would have to testify on their behalf. Although Peck testified that in his opinion he fell under an exception to the rule requiring withdrawal, the trial court disregarded his testimony as "self-serving."3

The defendants again moved for partial summary judgment, seeking a determination "that the plaintiff violated SCR 20.25 by failing to withdraw as counsel when he knew he was going to be a witness," and that this was "negligence per se." The trial court granted the motion. Subsequently, the defendants filed a motion in limine seeking an order (1) preventing Peck from proving the value of legal services he performed for Meda-Care in connection with the underlying labor relations matter, (2) compelling Peck to disgorge the fees he had already been paid, and (3) requiring Peck to reimburse Meda-Care for fees it paid Peck's co-counsel at the labor relations hearing. The trial court—without regard to whether Peck's failure to withdraw as counsel caused the defendants any damage—granted the motion in part, and ordered Peck to forfeit fees for work performed after he knew he would be a witness in the labor relations case. The order also directed Peck to reimburse Meda-Care for fees paid to the lawyer who was brought in as co-counsel when Peck determined that he would have to testify.

II.

[1, 2]

Summary judgment may not be granted to a party unless "there is no genuine issue as to any material fact," and the trial court is satisfied that the party "is entitled to a judgment as a matter of law." Rule 802.08(2), Stats. On review, we decide these matters de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987).

A.

[3, 4]

A client seeking damages from an attorney must prove not only that there was an attorney/client relationship, but, in addition: (1) that the attorney breached a duty owed to the client; (2) that the act constituting the breach caused the damages claimed; and (3) the fact and extent of damage. Lewandowski v. Continental Casualty Co., 88 Wis.2d 271, 277, 276 N.W.2d 284, 287 (1979). An attorney performing legal services for a client has a duty to exercise a reasonable degree of professional care, skill, and knowledge. Malone v. Gerth, 100 Wis. 166, 173, 75 N.W. 972, 974 (1898), cited with approval in Olfe v. Gordon, 93 Wis.2d 173, 179-180, 286 N.W.2d 573, 576 (1980). Although the Code of Professional Responsibility established the norms of required professional conduct for attorneys, it did not, by its express terms, "undertake to define standards for civil liability of lawyers."4 SCR 20.002, at 60. As noted in part I, the trial court held on summary judgment that, as a matter of law, Peck violated SCR 20.25, and that this was negligence per se.

[5, 6]

As a general rule, violation of a duty imposed by either a safety statute or regulation is negligence per se if "the harm inflicted was the type [that] the statute [or regulation] was designed to prevent and [if] the person injured was within the class of persons sought to be protected." Walker v. Bignell, 100 Wis.2d 256, 268, 301 N.W.2d 447, 454 (1981) (statute); Nordeen v. Hammerlund, 132 Wis.2d 164, 166-169, 389 N.W.2d 828, 829-830 (Ct. App. 1986) (regulation); see also Restatement (Second) of Torts secs. 285(a) & (b), 286 (1964). Statutes, however, "are not to be extended so as to impose any duty beyond that imposed by the common law unless such statute clearly and beyond any reasonable doubt expresses such a purpose by language that is clear, unambiguous, and peremptory." Grube v. Moths, 56 Wis.2d 424, 437, 202 N.W.2d 261, 268 (1972). See also Wells v. Chicago & North Western Transp. Co., 98 Wis.2d 328, 331-333, 340-341, 296 N.W.2d 559, 560-561, 564-565 (1980).

[7-9]

As an evidentiary matter, lawyers are not generally prohibited from testifying for their clients. French v. Hall, 119 U.S. 152, 154-155 (1886); 6 Wigmore, Evidence sec. 1911 (Chadbourn rev. ed. 1976). See also Rule 906.01, Stats. ("Every person is competent to be a witness except as provided by ss. 885.16 and 885.17 or as otherwise provided in these rules.").5 As an ethics proscription, the prohibition against a lawyer testifying for his or her client is thought to have germinated in 1846 when a British judge "sitting at nisi prius and citing no precedents, declared such testimony inadmissible," 6 Wigmore, Evidence sec. 1911, at 774, in a case where it was argued that "[t]he jury might have considerable difficulty in separating those statements which they had heard from a person as advocate, from those which they had heard from the same person as witness." Stones v. Byron, 4 Dowl. & L. 393, 394 (1846). The judge agreed, and condemned the attorney's testimony on behalf of his client as not "consistent with the due administration of justice." Id., 4 Dowl. & L. at 395. Though the proscription was, according to Wigmore, "repudiated in the same jurisdiction within (six) years by a court in banc," 6 Wigmore, Evidence sec. 1911, at 774, it took root and is now viewed as "long standing." Lawyers' Manual on Professional Conduct sec. 61:503 (ABA/BNA April 18, 1984). Although various theoretical justifications for the proscription have been advanced after it was first imposed,6 it was clearly designed—as Stones demonstrates—"to protect systemic interests" rather than those of the client or adversary. Enker, The Rationale of the Rule That Forbids a Lawyer To Be Advocate and Witness in the Same Case, 1977 Am. B. Found. Res. J. 455, 465. Thus, it would stretch the ethical prohibition beyond its function to fashion from it a rule of per se liability of the attorney to the client. See Walker, 100 Wis. 2d at 268, 301 N.W.2d at 454. Cf. Wells, 98 Wis. 2d at 340, 296 N.W.2d at 565 (statutory requirement that owner or occupant of land abutting a railroad highwaygrade crossing cut and trim brush and trees does not make the owner or occupant liable to a highway traveler injured in an accident caused by untrimmed foliage since the statute was designed "to protect the interest of the community at large rather than that of any particular class of individuals."); Olson v. Ratzel, 89 Wis.2d 227, 244, 278 N.W.2d 238, 246 (Ct. App. 1979) (that a criminal statute protects against a "multiplicity of hazards" and was designed to advance a general public—rather than private—interest, are factors weighing against applying the statute to define a standard of conduct in negligence cases). Since attorney-liability to a client based solely on a lawyer's testimony for the client was unknown at common law, and because Wisconsin's Code of Professional Responsibility is not only bereft of any indication that it was designed to impose such liability, but, as noted, reveals an explicit contrary intent, we may not impose such liability by decisional fiat. See Grube, 56 Wis. 2d at 437, 202 N.W.2d at 268. The violation of an ethics-code provision does not result in liability to a client unless a duty to that client has been breached and there is resulting damage. Furthermore, the clear language of both the Code of Professional Responsibility and its successor, the Rules of Professional Conduct for Attorneys, quoted ante at 669-670, prevents their use to define standards of professional care as a basis for civil liability.7

If Peck has breached his professional duty to Meda-Care, and Meda-Care was damaged as a result of that breach, Meda-Care can recover just compensation. See Lewandowski, 88 Wis. 2d at 277, 276 N.W.2d at 287. These are questions of fact. See Kerkman v. Hintz, 142 Wis.2d 404, 418-419, 418 N.W.2d 795, 801 (1988) ("[T]he trier of fact must determine what the alleged negligent attorney did and what a reasonable or prudent attorney would have done in the same circumstance.") (interpreting Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 112, 362 N.W.2d 118, 128 [1985]).8

B.

[10]

Defendants seek affirmance of the trial court's judgment on the alternative ground that Peck forfeited his entitlement to fees for services rendered to Meda-Care after the date that they contend SCR 20.25(1) required his withdrawal as counsel. We disagree. Although a court may order that fees be forfeited if an attorney breaches a duty owed the client, see Ennis v. Ennis, 88 Wis.2d 82, 95-96, 276 N.W.2d 341, 346 (Ct. App. 1979) (husband need not pay fees of wife's attorney when firm of attorney representing wife had previously represented husband), defendants' contention rests on the same per se analysis of SCR 20.25(1) that we have rejected. Absent an actual breach of a duty to the client, forfeiture of fees that have been earned is unwarranted.

III.

[11]

Peck seeks his "costs and reasonable attorney's fees on this appeal" under sec. 814.025, Stats.9 Section 814.025, however, does not apply to appeals. In re the Estate of Bilsie, 100 Wis.2d 342, 357, 302 N.W.2d 508, 517 (Ct. App. 1981). Rule 809.25(3), Stats., which covers frivolous appeals, permits the award of "costs and fees" if the court finds "an appeal or cross-appeal" to be frivolous. Rule 809.25(3)(a).10 Its language does not permit the award of frivolous-appeal costs and fees to an appellant, and we have not found, nor has Peck directed us to, any authority to the contrary. Indeed, as a recent and highly-regarded treatise notes in connection with similar federal counterparts to Rule 809.25(3)(a), "[n]o appellant may receive an award under Appellate Rule 38 or [28 U.S.C.] Section 1912 no matter how outrageous the appellee's position." See G. Joseph, Sanctions: The Federal Law of Litigation Abuse sec. 30(c)(2), at 413 (1989).11 We reject Peck's request for frivolous-appeal costs and fees.

We remand for further proceedings consistent with this opinion.

By the Court.—Judgment reversed, and cause remanded.