Burkes v. Hales

In Burkes v. Hales (Ct.App. 1991) 165 Wis. 2d 585 478 N.W.2d 37, Burkes sued Hales and other members of the Wisconsin Investment Board for wrongful discharge from his position as executive director. (Id., 478 N.W.2d at p. 38.) The Fox firm represented Burkes and the state Attorney General represented Hales. (Id. at p. 39.) While the litigation was pending, a contingent of lawyers at the Fox firm departed, taking Burkes's file with them. (Ibid.) The remaining Fox firm partners hired Attorney Hurley to represent them in a lawsuit concerning the Fox firm's breakup. (Ibid.) The Fox firm dispute settled, with the Fox firm retaining a financial interest in Burkes's action as part of the settlement. (Ibid.) "At about the same time, the attorney general ... withdrew ... and the governor appointed Hurley as special counsel to represent Hales." (Ibid.) The trial court granted Burkes's disqualification motion and the appellate court affirmed the court's exercise of discretion. (Id. at pp. 39, 43.) Burkes first held that Hurley had an implied fiduciary duty to the Fox firm's "clients whose files are part and parcel of the intrafirm litigation." (Burkes, supra, 478 N.W.2d at p. 41.) "We have no doubt that, as Burkes's attorney, the Fox firm had a fiduciary duty to him. And we agree with the trial court that Hurley, once retained by the Fox firm, undertook a similar duty and became bound by the same proscriptions as the firm itself with regard to Burkes." (Ibid., fn. omitted.) Burkes then held there was a substantial relationship between the two representations because one of Hurley's tasks in the Fox firm litigation was to protect the Fox firm's interest in the Burkes litigation. (Id. at p. 42.) The court rejected Hurley's argument that he could "avoid disqualification by proving that no confidences were actually shared." (Ibid.) "The test is whether the lawyer 'could have obtained' confidential information in the first representation that would have been relevant in the second; whether such information actually was obtained and, if so, whether it actually was used against the former client is irrelevant." (Ibid.)