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Today, the state Assembly is scheduled to vote on a bill limiting how much money attorneys can collect for fees in civil suits, but on Wednesday Mequon attorney Gordon Leech suggested that state Rep. Robin Vos, R-Rochester, may personally benefit from it.

The accusation surrounds a special session bill SB12 which would reform a part of state law allowing lawyers to collect fees from the losing party in some lawsuits. Though obscure on the surface, these legal rules may affect how easily citizens can sue. The state's civil lawyers have strongly opposed the bill which would generally limit attorney fees to three times the amount of damages awarded.

Documents provided by Leech show Vos is involved in a case in which an attorney is asking for more than three times the amount granted by a settlement.

Vos case

The case is no secret, said Vos.

"This is no big news story, and (lawyers are) so desperate to keep the gravy train running that they are willing to resort to smear tactics and make allegations that aren't true."

In the case, filed in Walworth County Circuit Court, Vos' company sued five people for not paying rent on one of the 25 student housing units which the company owns in Whitewater. The case began Sept. 13, 2010. One of the five people filed a counterclaim saying that she had broken the lease but that the property was not habitable because of numerous power outages which also affected lighting on a narrow stairwell.

On Oct. 11 - the day when the fee reform bill was introduced by Vos and Sen. Rich Zipperer, R-Pewaukee - there was a settlement in the case of that fifth person. (The suit involving the other four people remains active.) Without admitting liability, the company agreed to pay $2,175. On Oct. 26, the attorney for that fifth person filed a motion with the court to recover fees totaling $21,257.

Vos said that he checked with the bill's author and learned that it would apply only to cases filed after publication of the law.

That is uncertain, said Leech, managing member of the Consumer and Employment Law Center of Wisconsin in Mequon. The bill does not say

what cases it will apply to, and how it will apply seems to be left to courts, he said.

Peter Carstensen, a law professor at the University of Wisconsin-Madison, said he has not read the bill but also said that whether it applies in Vos' case depends not only on the language of the bill but also whether Vos' attorney asks to extend the time for debating fees.

Fee story

Although the state's civil litigation lawyers have focused on the cap of three times damages, SB12 allows judges to exceed the fee cap if they find good reason to do so, Vos said. The bill would only set a statewide standard, he said.

Without certainty of payment lawyers will turn away suits, attorneys say.

A client of Milwaukee lawyer Vince Megna paid $5,000 in repair costs to John Lynch Chevrolet-Pontiac in Burlington and sued because he asserted that he never authorized the work. The case was settled by Lynch for $12,500, but Megna, who specializes in auto litigation, received $151,250 in fees.

The case started in 2007 and involved an appeal and more action in Circuit Court before it was settled about two years later. Megna billed 706 hours of work, but a judge reduced his request to the $151,250 paid.

In his thousands of consumer cases, Megna said, he has seen fees grow large only when one party digs in and fights to the end. But it's not the ordinary person who has the resources to dig in and wait, he said.

The consumer with the $125,000 car will still be able to sue, he said. For three times the value of that car an attorney could easily take a case through trial.

"A guy with a $19,000 car who is struggling to make his payment, he's going to suffer dearly," Megna said.

What seems like high fees are paying an attorney for cases on which he has not yet been paid, Leech said. Those fees also compensate attorneys for the money which they invest in legal filing fees and deposition costs because many clients are not able to bear those expenses, he said.

By his calculation, Leech said, the bill will affect 245 provisions in state law which allow attorneys to recover fees from the losing party in a suit. Those provisions cover both consumers and businesses and include eminent domain claims, trade practices in the dairy industry, dealership laws, some stockholder actions, suits to enjoin the use of trademarks, and dealings between brewers, pubs, wholesalers and retailers.

Hurried law

"As I explain to my students, there's not a dearth of clients. It's paying clients," said Carstensen, the UW law professor.

The question of attorney fees is a perennial issue, he said, and there are legitimate questions for the Legislature to consider. But this bill is too rushed, he said, and there may be unintended consequences. For example, he said, we allow people to sue if they are wronged, but businesses may be much less happy if the only way to enforce consumer rules is to have the state pull business licenses because of improper paperwork.

Both the Republicans in power now and the Democrats who preceded them are too hasty to react to stories of woe, he said. The fees issue is one which should have been studied by a Legislative Council committee so that any changes could be carefully thought through, he said.

The Senate has already passed the bill, and if the Assembly approves it today it goes to Gov. Scott Walker.

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