Appeals Court: Pre-litigation Strategy Not a Basis for Judge’s
Sanction Against Law Firm
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
11, 2012 – A state appeals court recently took extraordinary
measures to stop a circuit court judge’s sanctions against the
Milwaukee-based law firm of Godfrey & Kahn.
The District I Wisconsin Court of Appeals in Godfrey
& Kahn S.C. v. Circuit Court for Milwaukee
County, 2011AP921-W (Oct.
10, 2012), granted the law firm’s petition for writ of
prohibition, barring Reserve Judge Dennis Flynn from imposing legal fees
and costs against the firm.
“We conclude that a writ of prohibition, while a drastic remedy
that should be used with caution, is appropriate here because the trial
court lacked authority for the sanction and no other appellate remedy is
realistically available to Godfrey & Kahn,” Judge Kitty
After a jury awarded former Midwest Air Group executive Christopher
Stone $405,000 in damages for wrongful termination, Judge Flynn told
Godfrey & Kahn, which represented Midwest Air Group, that it would
be responsible for Stone’s legal fees and costs.
Judge Flynn was irked by the firm’s pre-litigation strategy,
alleging the firm proceeded in bad faith by failing to provide Stone
with all requested investigation reports that would help him defend
against numerous allegations of sexual harassment. Stone was fired
Midwest Air Group engaged Godfrey & Kahn to assist in the
investigation and advise the board on whether it had proper cause to
terminate Stone’s employment.
Upon Stone’s request for investigation reports, Godfrey &
Kahn lawyer Michael Huitink, on the
client’s behalf, informed Stone that his employment contract did
not require release of all reports, and sent Stone a final report that
did not include interview summaries of those alleging sexual harassment.
Judge Flynn took issue with this approach, alleging numerous firm
attorneys engaged in a "systematic denial" of Stone's
rights under the employment contract.
“It was the law firm that egregiously and intentionally, and
without any sound legal basis, established the Kafkaesque procedures for
Midwest’s termination of [Stone] for cause under the [employment]
contract,” Judge Flynn stated in court proceedings.
Without addressing the merits of Judge Flynn's assertions against
Godfey & Kahn, the appeals court explained
that courts can’t invoke inherent authority to sanction lawyers
for pre-litigation legal advice, noting that no case stands for the
proposition that inherent authority can be invoked on those grounds.
However, it left the question open for the future.
“Whether it is ever possible for pre-litigation conduct to
justify the exercise of inherent power is an issue we do not reach
because it is not necessary to our decision,” wrote Judge