Dane County Bar Association program reviews major court decisions of 2004.

• Author: Ziemer, David

Byline: David Ziemer

In a program before the Dane County Bar Association on May 24, covering significant cases in 2004, DeWitt, Ross & Stevens, SC, attorney Daniel W. Hildebrand noted three significant cases that will directly affect how attorneys practice law: H. Sampson Children's Trust v. L. Sampson 1979 Trust, 2004 WI 57, 271 Wis.2d 610, 679 N.W.2d; State v. McDowell, 2004 WI 70, 272 Wis.2d 488, 681 N.W.2d 500; and Piaskoski & Associates v. Ricciardi, 2004 WI App 152, 275 Wis.2d 50, 686 N.W.2d 675.

Sampson involved the routine release of documents during discovery that later turned out to be covered by the attorney-client privilege. The question was whether the horse could be put back in the barn by holding that the documents retained the privilege and could not be used by the opposing party.

The Supreme Court held that only the client can waive the privilege, and therefore, the documents could not be used in the case.

In McDowell, a criminal defense attorney believed his client intended to perjure himself, and adopted narrative form for direct examination, rather than the traditional question and answer format.

The court held it improper for the attorney to do so under the circumstances. Noting that it is not the function of an attorney to judge his client's credibility, the court held that an attorney cannot adopt narrative form based on a conclusion the client will perjure himself, unless the client tells the attorney in advance that perjury is his intention.

Even then, the attorney must notify the client, court, and prosecutor that he intends to use narrative form. Prior to the decision, Hildebrand noted, attorneys lacked guidance how they should proceed when they suspected a client intended to perjure himself.

The court of appeals decision in Piaskoski makes it easier for law firms to have an amicable breakup by permitting fee splitting in pending cases between the attorneys who leave a law firm.

The biggest tort case of the term was Insurance Co. of North America v. Cease Electric, 2004 WI 139, 276 Wis.2d 361, 688 N.W.2d 462, in which the Supreme Court held the economic loss doctrine - barring tort remedies for in suits based on contracts for products - does not apply to contracts for services.

Hildebrand cited three reasons for the court's decision: the inapplicability of the Uniform Commercial Code to such contracts; longstanding precedent allowing tort remedies against health care providers, attorneys, architects, and other...