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
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.
Following judicial rotation, see SCR 70.23(3), this case was reassigned to the Honorable Patricia D. McMahon,
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.
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 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."
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).
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
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
Peck seeks his "costs and reasonable attorney's fees on this appeal" under sec. 814.025, Stats.
We remand for further proceedings consistent with this opinion.
By the Court.—Judgment reversed, and cause remanded.
SCR 20.24 of the Code provided:
Wisconsin Supreme Court Rules at 102 (Callaghan 1986).
SCR 20.25 of the Code provided:
Id. at 102-103.
The subject matter of SCR 20.24 and SCR 20.25 of the Code is now found at SCR 20:1:16 and SCR 20:3.7 of the Rules.
SCR 20:1.16 provides, as material:
139 Wis. 2d at lxvi-lxvii.
SCR 20:3.7 provides:
139 Wis. 2d at lxxxv.
139 Wis. 2d at xxii.
28 U.S.C. sec. 1912 provides: