Wis.LIRC ER Decision: Summers - May 26, 2000 - Settlement - absent alleged misrepresentation or intimidation by a department representative, and where settlement agreement not invalid on its face, no collateral attack on finality of settlement based on a claim that an attorney misrepresented the agreement or exceeded authority

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

HAROLD SUMMERS, Complainant

NORTHWEST AIRLINES INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199801405, EEOC Case No. 26G980683

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed May 26, 2000
summeha.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the complainant argues that the respondent's worker's compensation attorney engaged in unethical conduct during the course of settlement negotiations and that, in order to dismiss the complaint, it must first be determined whether the settlement is void and unenforceable based upon that conduct. This argument lacks merit. In the absence of an allegation of misrepresentation or intimidation by a representative of the department, and where there is nothing in the terms of the settlement agreement itself which renders it invalid on its face, the commission will not entertain collateral attacks on the finality of a settlement based on a party's claim that his attorney misrepresented the agreement to him or exceeded the scope of his authority in agreeing to it. Clussman v. Ellis Stone Construction Co. (LIRC, March 25, 1986). See, also, Johannes v. County of Waushara Executive Committee (LIRC, November 1, 1993); Pustina v. Fox & Fox, S.C. (LIRC, April 27, 1993). Indeed, the commission has no statutory authority to address issues concerning attorneys' professional competence and responsibility or the effects of unethical conduct on contractual obligations. Nealy v. Miller Compressing Company (LIRC, September 19, 1995). The only question which is significant in a case such as this is the threshold question of whether, in fact, the parties reached an agreement to settle the claim. Gronowski v. Milwaukee County Department of Social Services (LIRC, April 13, 1998).

Here, there is no dispute that the complainant signed a settlement agreement which disposes of his discrimination complaint. The complainant does not argue that he did not read and understand the agreement, nor does he maintain that the terms of the agreement are unclear, that it is unenforceable for lack of consideration, or that it was arrived at under duress. Although the complainant contends that he was not represented when he signed the settlement agreement, it is clear that he was represented by at least one, if not two, different attorneys, and that the settlement negotiations were conducted through an attorney for the complainant. Further, it is the commission's policy to treat settlements as final, even in cases where a party is unrepresented, provided the party has entered into the agreement knowingly and voluntarily. Pustina v. Fox & Fox, S.C. (LIRC, April 27, 1993).

In his petition the complainant also argues that, if the commission is unwilling to rule that the settlement agreement is void and unenforceable, the respondent's motion to dismiss should be stayed and the parties should be directed to state court for a determination on the enforceability of the agreement. The complainant has not provided any legal support for this request, and the commission is unaware of any basis for staying the motion to dismiss. To the contrary, if the complainant believes that attorney misconduct occurred, his remedy is to file a malpractice action (1 ) or to pursue the matter with the Board of Attorneys Professional Responsibility. See Nealy v. Miller Compressing Company (LIRC, September 19, 1995); Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 285, 470 N.W.2d 859 (1991). For purposes of these proceedings, however, the complainant has entered into a binding settlement of his discrimination complaint which warrants dismissal of the complaint.

cc:
James A. Wendland
Ely A. Leichtling

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Footnotes:

(1)( Back ) Although the complainant's petition is based upon an allegation that the respondent's attorney acted unethically by engaging in settlement negotiations with an attorney whom it knew did not represent the complainant with respect to his discrimination complaint, by implication this argument also raises a question as to whether the complainant's own attorney exceeded the scope of his representation.