ERD Case No. 9321736

An administrative law judge of the Equal Rights Division of the Department of Industry, Labor and Human Relations, issued an Order of Dismissal in the above-captioned matter on September 16, 1993. Complainant filed a timely petition for review by the commission.

Based upon a review of the file, the Labor and Industry Review Commission issues the following:


The Order of Dismissal issued by the administrative law judge on September 16, 1993, is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed November 1, 1993.

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


Complainant appeared in this matter by counsel (Attachment 1).  Counsel for complainant subsequently filed a written request for withdrawal with prejudice, signed by counsel (Attachment 2).  That letter met all the requirements of Wisconsin Administrative Code chapter Ind 88.04(1), which provides:

"A complaint may be withdrawn at any time. A request for withdrawal shall be written and shall be signed by the complainant or by the complainant's duly authorized representative or attorney of record. Upon the filing of a request for withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated."

Having received a written request for withdrawal signed by complainant's attorney of record, the administrative law judge was obliged by this rule to dismiss the complaint by written order. Because the attorney's letter specifically requested dismissal with prejudice, it was appropriate for the ALJ to issue the dismissal on those terms.

In the absence of an allegation of misrepresentation or intimidation by a representative of the department, and where there is no issue presented about whether the settlement agreement contains something which makes it invalid on its face but only a question of whether it was in fact agreed to, the commission will not entertain collateral attacks on the finality of a settlement based on a party' s claim that their attorney misrepresented the agreement to them or exceeded the scope of their authority in agreeing to it. Clussman v. Ellis Stone Construction Co. (LIRC, March 25, 1986). This rule reflects not only the important policy of making parties accountable for actions of their attorneys, see, Dugenske v. Dugenske, 80 Wis. 2d 64, 68, 257 N.W.2d 865 (1977), but also the equally important policy that settlement should be encouraged. There would be no incentive to enter into a settlement if, once entered into, it could be repudiated by the other party simply because they thought better of it later. If settlement is to be encouraged, settlements must be treated as final when made.

By filing her letter of September 15, 1993, complainant's counsel effectively brought about the dismissal with prejudice of her client's complaint. If her client had in fact authorized this and has simply thought better of it now, his afterthoughts do not justify upsetting the order of ALJ. If her client had in fact  not authorized counsel to enter into the settlement on his behalf or to dismiss his complaint with prejudice on his behalf, then his remedy is to attempt to prove malpractice. See, Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 285, 470 N.W.2d 859 (1991).   The Labor and Industry Review Commission is not the appropriate tribunal to determine whether the obligations of attorney to client were properly complied with in this case. It can determine only that, counsel of record having filed a written request that the complaint be dismissed with prejudice, the dismissal was appropriate.


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