Wis.LIRC ER Decision: Brunswick, Frederick - December 8, 1994 - Procedure - Withdrawal and settlements - complainant alleges his attorneys who represented him in entering into settlement agreement had conflict of interest - absent allegation of misrepresentation or intimidation by department, or facial invalidity, LIRC will not entertain collateral attack on settlement agreement

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

FREDERICK BRUNSWICK, Complainant

EMERGENCY SERVICES OF DOOR COUNTY, Respondent A

RICHARD BURGESS, DIRECTOR,
EMERGENCY SERVICES OF DOOR COUNTY, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case Nos. 9303635, 9303894

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued an Order of Dismissal in this matter. A timely petition for review was filed.

The commission has considered the petition, and it has reviewed the record. Based on its review, the commission affirms the Order of Dismissal.

DECISION

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

Dated and mailed December 8, 1994
brunsfr.esd : 110 :

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. meier, Commissioner

MEMORANDUM OPINION

This case arises out of a complaint of discrimination in terms or conditions of employment because of arrest record. The initial determination found probable cause to believe that discrimination had occurred. Hearing was scheduled for August 2, 1994. At the hearing, the parties entered into a settlement agreement.

The Complainant now wants to get out, of that agreement. His complaint about it is that his attorneys had a conflict of interest. He has filed a copy of a letter he received in July 1994 from his attorneys, Liebmann, Conway, Olejniczak & Jerry, of Green Bay, which shows that they also represent the insurance company which would cover any liability incurred by Respondent Door County Emergency Services in the event that a civil rights action was brought against it.

In the past the commission has consistently taken the position that absent an allegation of misrepresentation or intimidation by a representative of the department, or a settlement agreement that contains something that makes it invalid on its face, a Complainant's claims of misrepresentation on the part of his attorney in the entering into of a settlement agreement will not be entertained. Johannes v. County of Waushara Executive Committee (LIRC, 11/1/93), Pustina v. Fox & Fox, S.C. (LIRC, 4/27/93), Clussman v. Ellis Stone Constr. (LIRC, 3/25/86). The appropriate remedy, the commission has held, is for the Complainant to sue for malpractice. Johannnes.

The commission believes that the same principle should apply in the case of a party who asserts that they should not be held to the terms of a settlement agreement they entered into because their attorney had a conflict of interest. The commission is an administrative tribunal with limited jurisdiction and limited powers. The type of issue presented here is one that is far from what the WFEA contemplates the commission will be resolving. No issue is presented under the WFEA; the commission would have to address issues concerning attorney's professional responsibility and the effects of unethical conduct on contractual obligations, issues that are not within its statutory brief.

Additionally, the commission does not have enough information to resolve this issue as it should be resolved. A conflict of interest such as Complainant asserts occurred here does not always require that the representation terminate; with full disclosure and consent it may be permissible. Here, the attorneys did disclose the potential conflict to Complainant before the time that he entered into the settlement agreement. While he now claims in his petition, that "he was led to believe that [he] would receive fair representation", the questions of exactly what disclosure was made to Complainant, and whether it was adequate, are factual ones the commission is not in a position to resolve.

The commission wishes to note that it affirms the Order of Dismissal based solely on the fact that it is not within the commission's authority to set aside a settlement agreement in such circumstances. The commission's decision is not intended to express any view on the question of whether or not a conflict of interest existed or whether or not any such conflict of interest may have required the withdrawal of Complainant's counsel. Such questions would be more appropriately addressed to the Board of Attorneys' Professional Responsibility.

cc: Dennis D. Costello

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