Background
This dispute arises from a series of commercial real estate transactions in Brown County, Wisconsin, beginning in 2012, in which Robert and Betty Gerbers collaborated with Richard Otradovec to develop certain property. Otradovec, operating through RODAC, LLC, and Ash Investors, LLC, allegedly purchased property from the Gerbers, solicited their investments, and secured building permits—including for a business called Harbor Wealth Management LLC. Attorney Kathryn Blom of Epiphany Law (later Amundsen Davis) represented the Otradovec defendants in connection with these 2012–2014 transactions.
In June 2023, the Gerbers—represented by Attorney Shawn Govern of DeWitt LLP—filed a 25-count lawsuit against the Otradovec defendants. During federal court proceedings, DeWitt subpoenaed records from Attorney Blom and her then-firm, Amundsen Davis, which inadvertently produced privileged communications and work-product materials, including a draft offer to purchase the Harbor Wealth parcel. DeWitt used those materials in federal summary judgment proceedings before Amundsen Davis sought their return. The federal court dismissed the federal claims and remanded state claims to Brown County Circuit Court without resolving the privilege dispute.
In December 2024, Attorney Blom left Amundsen Davis and joined DeWitt. The Otradovec defendants moved to disqualify DeWitt on two grounds: (1) Attorney Blom’s prior representation of the Otradovec defendants created a conflict under SCR 20:1.9, imputed to the entire firm under SCR 20:1.10; and (2) Attorney Blom’s consultations with defense counsel on litigation strategy made the Otradovec defendants her current clients under SCR 20:1.7. The circuit court denied the motion, citing attorney mobility, the Gerbers’ right to chosen counsel, and a finding that the prior and current matters were not substantially related.
The Court’s Holding
The Wisconsin Court of Appeals reversed, holding that the circuit court erroneously exercised its discretion by denying the disqualification motion. The court found all three criteria for disqualification under SCR 20:1.9 and 20:1.10 satisfied: Attorney Blom had formerly represented the Otradovec defendants (not merely Ash Investors, as the Gerbers argued); the prior and current matters are substantially related because both involve the same commercial property development and at least some claims arise from the same 2012–2014 transactions in which Blom participated; and the Gerbers’ interests are materially adverse to those of the Otradovec defendants in a multimillion-dollar lawsuit. The court further noted that the inadvertent disclosure of privileged materials—which DeWitt actually used against the Otradovec defendants in federal court—confirmed the substantial relationship between the matters.
The court also rejected the Gerbers’ mootness argument. Although the Gerbers had stipulated to substitute Michael Best & Friedrich LLP for DeWitt while the appeal was pending, the court held the appeal remained live because substitution—unlike disqualification—would not prevent the Gerbers from re-retaining or consulting DeWitt in the future. A disqualification order was necessary to fully protect the Otradovec defendants’ interests.
The court declined to address the alternative SCR 20:1.7 current-client theory, finding the SCR 20:1.9 former-client ground dispositive. On remand, the circuit court was directed to enter an order disqualifying DeWitt, identify which disclosed materials are confidential, privileged, or work product, and enter a protective order requiring the Gerbers’ counsel to return or destroy those materials and certify compliance.
Key Takeaways
- A transactional attorney who represents a client in commercial real estate dealings is disqualified under SCR 20:1.9 from switching firms and joining the opposing side in litigation that directly challenges those same transactions—even if she personally screens herself from the new matter.
- Imputed disqualification under SCR 20:1.10 extends to the entire firm when any one lawyer in the firm would be individually disqualified; an internal ethical screen does not override this imputation absent an applicable exception, none of which were present here.
- Voluntary substitution of counsel during a pending disqualification appeal does not moot the appeal, because disqualification—unlike substitution—permanently bars re-engagement and protects the former client from future prejudice.
- A circuit court’s personal philosophy favoring attorney mobility, or a litigant’s general preference for chosen counsel, cannot override the ethical obligations imposed by the Wisconsin Supreme Court Rules governing conflicts of interest.
Why It Matters
This decision reinforces the breadth of the “substantially related matter” standard in Wisconsin’s former-client conflict rule. Attorneys who handle transactional work—particularly in real estate development—should understand that moving to a firm representing adverse parties in litigation arising from those same deals will trigger mandatory disqualification, regardless of internal screens or the volume of work the new firm has invested in the case. The opinion makes clear that courts must apply the governing legal standards, not equitable considerations about attorney mobility or client choice.
The case also carries a practical warning about inadvertent disclosure. The fact that privileged materials were actually produced and used against the former client strengthened—rather than created—the disqualification outcome, illustrating how inadvertent disclosure incidents can compound conflict-of-interest problems when a lateral hire bridges opposing sides of the same dispute.