761 Parties’ right to representation; questions relating to conduct of attorneys

It was not abuse of discretion for the administrative law judge to refuse to grant a postponement requested by the respondent due to the death of its attorney when the request was made only one week before the hearing and the respondent never told the Division it was represented by counsel, despite being repeatedly directed to do so. While the respondent argues that the failure to notify the Division was its attorney's fault, errors on the part of legal counsel are imputed to the parties. Towns v. Holistic Home and Hospice (LIRC, 02/08/23).

Consistent with Industrial Roofing Serv., Inc. v. Marquardt, 2007 WI 19, 299 Wis. 2d 81, 726 N.W.2d 898, when a party failing to respond to discovery requests in an ERD case is represented by legal counsel, the ALJ must determine whether the party is blameless in the discovery failure when considering an appropriate sanction under Wis. Stat. ch. 804, and it is an abuse of discretion for the ALJ to order dismissal of a complaint without having made a determination that the party, as opposed to the attorney, was at least partly to blame. Welke v. Luther Hosp., Mayo Health Sys. (LIRC, 05/30/14).

The actions or inactions of a Complainant’s attorney, even if erroneous, are imputed to the Complainant. Where the actions of an attorney adversely impact a Complainant who retains that attorney, the actions by the attorney do not provide a basis for granting further hearing. Amos v. McDonald’s (LIRC, 05/25/07).

Steps should be taken to ensure that unrepresented litigants understand the rules relating to proceedings before the Equal Rights Division. Nevertheless, they will be held to those rules, which are the same rules that apply to attorneys. Rutherford v. LIRC (Milwaukee Co. Cir. Ct., 11/03/06).

It is appropriate to impute the procedural errors of a party’s representative to the party. In this case, the failure of a party’s attorney to file an initial brief for almost five months after the due date, with no valid excuse, and where there would be prejudice to the other party, warranted disregarding the brief. Nickell v. County of Washburn (LIRC, 07/29/05).

The Complainant asserted on appeal that she did not appear for her hearing because she could not find a lawyer who would take her case. While the Complainant may have preferred to have an attorney represent her at the hearing, representation by an attorney is not a matter of right under the Equal Rights Division’s rules. In instances where a party does not appear by counsel or other representative, it is the role of the Administrative Law Judge to see that the party’s case is properly developed. Therefore, the Complainant did not show good cause for her failure to appear at the hearing. Whitt v. Alterra Wynwood of Madison West (LIRC, 07/15/05).

Clients are responsible for the actions of their legal counsel. Cleary v. Federal Express (LIRC, 07/30/03).

If a party chooses to proceed without legal counsel, it is held to the same standards of proof as if they were represented. The law is no different for those who appear pro se than for those who appear with representation. Ramada Inn v. LIRC (Eau Claire Co. Cir. Ct., 3/12/03).

Factors to be considered in determining whether an Administrative Law Judge adequately protected the rights of a party not represented by counsel include: (1) whether there was a full opportunity for the unrepresented party to develop his case on direct and cross examination; (2) whether a full and fair hearing was provided; (3) whether it was clear that the party had notice of the issues to be considered at the hearing and an opportunity to present evidence on those issues; (4) whether the unrepresented party understood and was able to hear and participate in the hearing and understand the evidence offered; and (5) whether the Administrative Law Judge was impartial. Ramada Inn v. LIRC (Eau Claire Co. Cir. Ct., 06/03/03).

The Complainant stated that he was misinformed about the hearing date by his attorney. Any misinformation that the Complainant received regarding the date of his hearing originated with the Complainant’s attorney, and was not due to any fault on the part of the Respondent or the Administrative Law Judge. The actions by the attorney do not provide a basis for setting aside the dismissal of the case. The Complainant has a possible remedy in a malpractice action, particularly when the dismissal of the complaint is entirely attributable to the attorney’s conduct. Hamilton v. Northwestern Elevator Co. (LIRC, 12/10/02).

It is necessarily implied from the Personnel Commission’s general authority to regulate the conduct of hearings that the Commission can prohibit a representative from practice when his conduct interferes substantially with the conduct of the hearing. Sathasivam v. DOC (Wis. Personnel Comm’n, 07/31/02).

An allegation of negligence on the part of an attorney does not warrant tolling the statute of limitations. Johnsrud v. Prairie du Chien Mem'l Hosp. (LIRC, 06/21/02).

While it is unfortunate if the Complainant received inadequate legal representation, that is not a basis for setting aside the Administrative Law Judge’s decision. It is more equitable to allow the adverse consequences of poor legal representation to fall upon the shoulders of the party who has chosen the attorney, rather than on the opposing party. The Complainant has the possible remedy of a malpractice action against the attorney. Squires v. Montex, Inc. (LIRC, 03/15/02).

The Respondent’s decision to appear pro se is a matter for which he must bear the consequences. The Equal Rights Division issued a hearing notice two months prior to the hearing, along with an information sheet advising the parties that if they planned on having legal representation they should obtain an attorney immediately, since attorneys need time to prepare a case for hearing. Mackey v. ICR, Ltd. (LIRC, 01/31/02).

The Complainant’s failure to properly serve subpoenas did not establish good cause for a postponement of the hearing. The error may have been attributable to the fact that the Complainant was not an attorney and did not understand the applicable procedural requirements as readily as an attorney might. However, parties who choose to represent themselves accept certain risks attendant with their decision to proceed without assistance of counsel. Oriedo v. Madison Area Tech. College (LIRC, 07/24/98).

The Labor and Industry Review Commission will not address issues concerning an attorney’s professional competence and responsibility or the effects of unethical conduct on contractual obligations, since these issues are not within its statutory authority. Nealy v. Miller Compressing Co. (LIRC, 09/19/95); Summers v. Northwest Airlines (LIRC, 05/26/00).

Inadequate legal representation is not an adequate basis for setting aside an Administrative Law Judge’s decision or for a granting re-hearing. Patek v. Waukesha Engine Div., Dresser Indus. (LIRC, 08/31/95).

The Labor and Industry Review Commission is not in a position to determine whether an alleged conflict of interest may have required the withdrawal of the Complainant’s counsel. Such questions would be more appropriately addressed to the Board of Attorneys’ Professional Responsibility. Brunswick v. Emergency Serv. of Door County (LIRC, 12/08/94).

The Complainant objected to the Respondent being represented by out-of-state counsel. The Administrative Law Judge determined that the Division’s rules allow an out-of-state attorney to practice before the Division. Even if the attorney’s appearance at the hearing was in violation of the provisions of sec. 757.30, Stats., which governs the practice of law in Wisconsin, this would not constitute grounds for a reversal of the Administrative Law Judge’s decision because the Complainant did not establish probable cause to believe that he was discriminated against. Dolk v. Marquette Electronics (LIRC, 07/11/94).

The Complainant's attorney could not reasonably rely on representations regarding the applicable statute of limitations made by the Respondent’s attorney. The Complainant’s attorney had an obligation to look up the statute of limitations and determine through independent research whether he was required to exhaust internal grievance procedures before filing a complaint under the Wisconsin Fair Employment Act. Perri v. DILHR (La Crosse Co. Cir. Ct., 04/25/94).

The Complainant had ample opportunity to retain legal counsel and his failure to do so was not grounds for a postponement of the hearing. The Complainant contended that he learned the night before the hearing that the individual who was assisting him with his case did not have a license to practice law. However, the Department's administrative rules provide that a party may appear at the hearing in person and “by counsel or other representative.” Thus, even if the Complainant did have a representative without a license to practice law, this individual was not prevented from appearing on the Complainant's behalf. Jenkins v. Pfister & Vogel Tanning Co. (LIRC, 03/22/94).

On appeal, the Complainant asserted that he failed to prevail on his complaint of discrimination because his attorney was incompetent. Even if the Complainant's assertion was true, it would not provide a basis for reversing the Administrative Law Judge’s decision. This is a matter between the Complainant and his attorney. Barnes v. A.C. Rochester (LIRC, 03/24/94).

Where counsel for the Complainant made an argument which assumed that the Department had authority to control withdrawal of counsel from representation, Complainant's counsel could not later argue that such authority did not exist. Complainant's counsel was, therefore, admonished to abide by an order that she not withdraw from representation of the Complainant without express approval of the tribunal before which the Complainant's claim was pending. Saccomandi v. E. Pocus & Co. (LIRC, 09/09/93).

An Administrative Law Judge can only limit a party's choice of representative for a compelling reason. The right to appear by a representative under Ind 88.16(2), Wis. Admin. Code, is unqualified. Jackson v. City of Milwaukee Pub. Library (LIRC 12/14/90).

No party has the right to advance notice whether the opposing party will be represented by an attorney at hearing. Duarte-Vestar v. Goodwill Indus. (LIRC, 11/09/90).

At the commencement of the hearing, the Complainant informed the Administrative Law Judge that his attorney was unavoidably delayed in returning to Wisconsin from out of state. The Complainant advised the Administrative Law Judge that they could either await the attorney's arrival or proceed without him. The hearing proceeded and the Complainant presented his own testimony. The Administrative Law Judge then granted the Respondent's motion to dismiss. The subsequent motion to vacate the proceedings filed by counsel for Complainant was without merit. Stoffel v. Briggs & Stratton (LIRC, 09/20/89).

Parties who choose to represent themselves accept certain risks attendant with their decision to proceed without assistance of counsel. Hammer v. G.E. Med. Sys. (LIRC, 08/29/89).

The Complainant’s claim that his attorney provided inadequate representation at the hearing is not a basis for reversing the Administrative Law Judge's decision or for ordering further hearing on appeal. McCabe v. All-Car Automotive (LIRC, 07/31/89).

The complaint was dismissed and the Complainant's attorney was ordered to pay the Respondent's attorney's actual costs and attorney's fees incurred due to the Complainant's failure to comply with discovery requests. If the Complainant's attorney was to blame for the failure to respond to the discovery requests, as the Complainant argued on appeal, the Complainant's remedy would be a suit for malpractice against the attorney, not a reversal of the dismissal of his complaint. Smith v. Norris Adolescent Ctr. (LIRC, 04/21/89).

Parties who chose to represent themselves in an Equal Rights administrative proceeding accept certain risks attendant with their decision which do not rise to the level of a due process concern. Thus, Complainant here had no due process right to have additional evidence considered in her appeal before the Commission, which she had not submitted at hearing, simply on the grounds that she was not represented by an attorney at hearing. Johnson v. Wis. Lutheran Child & Family Serv. (LIRC, 09/09/86).

Although representation by legal counsel would have been helpful to the Complainant, the hearing examiner did give him a full opportunity to develop his case. When the Complainant decided to relieve his attorney prior to the hearing and proceed without counsel, he did so at his own risk. Kropiwka v. DILHR, 87 Wis. 2d 709, 275 N.W.2d 881 (1979).