When a person retains counsel to file a lawsuit or defend against a lawsuit, it’s standard practice that the attorney takes the lead in all matters, including communications with opposing counsel and appearing at court hearings. After all, that’s part of what the client is paying for. In turn, the lawyer needs to communicate any deadlines or document requests to his or her client and generally keep the client in the loop about important developments. These practices are all interwoven with attorneys’ obligations under the Wisconsin Supreme Court’s Rules of Professional Conduct, including, but not limited to, SCR 20:1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client”); SCR 20:3.2 (“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client”); SCR 20:3.4(d) (“A lawyer shall not, in pretrial procedure, … fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party”); and SCR 20:1.4(a)(3) (“A lawyer shall keep the client reasonably informed about the status of the matter”). The full text of these rules can be found here and here.
But what, if any, independent obligation does a client have to stay abreast of developments and demands in her case, even when she has retained counsel? And what happens when a lawyer fails to follow these generally accepted practices or his ethical obligations? At what point does the client become responsible for the consequences of her attorney’s actions, particularly where the attorney has kept the client in the dark? The Wisconsin Court of Appeals recently answered this question in Scudder v. Concordia University, 2025 WI App 13.
In Scudder, the plaintiff—Scudder—wanted to sue Concordia University. Having no prior experience with civil litigation, she looked for a lawyer with litigation experience specifically in school law and students’ rights. She hired an attorney whose advertisements listed expertise in those areas, and she trusted this attorney to zealously advocate on her behalf.
As the litigation proceeded, the circuit court held a scheduling conference early in the case. And, as is standard practice, Scudder’s attorney attended but Scudder did not. But here is where the problems began for Scudder. Scudder was unaware of the scheduling conference, and her attorney never gave her a copy of the scheduling order or otherwise informed her of the deadlines that were ultimately issued at the conference. Although he was in communication with her during the relevant time frame, Scudder’s attorney never asked Scudder for the names of any witnesses and then missed the deadline set for Scudder to file her witness list.
Next, Concordia served Scudder’s attorney with discovery requests. As is standard practice, and pursuant to SCR 20:4.2(a), Concordia did not copy Scudder on its emails to Scudder’s attorney. However, Scudder’s attorney never forwarded the discovery requests to her or otherwise informed her of them at all. Scudder’s attorney then blew the response deadline and multiple self-imposed extensions to the deadline, and he never informed her of the missed deadlines. Then, Concordia served a notice for Scudder’s deposition. But Scudder’s attorney never told her about it, and no one showed up on her behalf at the scheduled date and time. And when Scudder’s attorney finally provided Concordia with discovery responses, they were incomplete and unverified—and Scudder remained in the dark about everything. Scudder began getting concerned when she didn’t hear anything about her case, so she called her attorney numerous times between May and July. But he never returned her calls.
Eventually, Concordia filed a motion seeking sanctions as a result of Scudder’s attorney’s conduct, including attorney’s fees and an order precluding Scudder from introducing evidence of her damages—something that Concordia had asked for in its discovery requests but did not receive. The circuit court held a hearing on this motion, but Scudder did not know about it and did not appear. However, her attorney was a no-show, too. Ultimately, the court granted Concordia’s sanctions motion and entered an order requiring Scudder to personally pay Concordia’s attorney’s fees of $5,129.06 incurred in bringing the motion.
Scudder did not learn about the order or the fee award until almost a month later when she checked the case docket on CCAP. She retained new counsel, who filed a motion for relief from the order for sanctions and requesting to amend the scheduling order. Concordia then filed a motion for summary judgment, arguing that Scudder had no admissible evidence that she suffered damages, because she was barred from introducing such evidence as a sanction. The motions were heard on the same date, and the circuit court considered whether Scudder, personally, was truly blameless.
Under a “reasonable and prudent person” standard, the circuit court held that Scudder was to blame for her attorney’s actions, because Scudder knew “something [was] not going on quite right and she still wait[ed]” and “did nothing aside from making numerous calls [to her attorney] from May to July.” The circuit court also said that the issue of Scudder’s personal responsibility for the sanctions was “not really a decision for this Court” and suggested that Scudder “might have a cause of action” against her attorney—likely hinting at a malpractice action against her deficient attorney. The circuit court then granted Concordia’s motion for summary judgment. Scudder (with new counsel, of course) appealed the order finding her to blame for her lawyer’s conduct.
The Court of Appeals reversed the circuit court’s decision and explained that there are two elements to consider when deciding whether a client is personally culpable for a lawyer’s misconduct: first, the court must consider “the client’s failure to act in a reasonable and prudent manner;” and second, the court must consider “the client’s knowledge of or complicity in that conduct.” And in applying this test, the appellate court noted that, “as a practical matter, a layperson ordinarily cannot be expected to supervise his or her attorney through every pretrial phase of litigation.”
With these considerations in mind, the Court of Appeals found that Scudder was blameless. It pointed out that she was a first-time litigant who did not have personal knowledge of the deadlines in her case, nor was there any evidence that she had reason to know “that her case was teetering on the brink of being dismissed.” Scudder’s attorney assured her early on that the case was under control. While Scudder spoke with her attorney early in the case about witnesses, she was not aware of the requirement of a witness list or that it was overdue. She was similarly unaware that her discovery responses were deficient and untimely.
Additionally, the Court of Appeals criticized the application of “a bright-line rule that after three months without communication, a litigant is complicit in an attorney’s egregious conduct.” Rather, “simply recognizing an attorney is not taking a client’s calls does not necessarily and automatically lead to a conclusion that he is also ignoring litigation obligations.”
Thus, in a published decision, the Court of Appeals found that Scudder should not have been held personally responsible for her attorney’s (mis)conduct. Moreover, the Court of Appeals noted that even if some sanction against Scudder had been warranted, the circuit court’s choice of sanctions—effectively dismissing her case by granting Concordia’s motion to exclude evidence of damages—was far too draconian. The circuit court could and should have imposed other, less severe sanctions but instead “imposed a sanction that effectively eviscerated Scudder’s case” despite the fact that even Concordia had not requested it.
The Scudder decision should allow clients to rest at least a little easier if they need or want to retain counsel: a client is not expected to babysit her lawyer, nor is she assumed to know what her attorney knows about the status of the case. After all, it is the lawyer’s duty to “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” ABA Comment 1, SCR 20:1.3.
Author: Sara C. Mills-Flood
When a person retains counsel to file a lawsuit or defend against a lawsuit, it’s standard practice that the attorney takes the lead in all matters, including communications with opposing counsel and appearing at court hearings. After all, that’s part of what the client is paying for. In turn, the lawyer needs to communicate any deadlines or document requests to his or her client and generally keep the client in the loop about important developments. These practices are all interwoven with attorneys’ obligations under the Wisconsin Supreme Court’s Rules of Professional Conduct, including, but not limited to, SCR 20:1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client”); SCR 20:3.2 (“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client”); SCR 20:3.4(d) (“A lawyer shall not, in pretrial procedure, … fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party”); and SCR 20:1.4(a)(3) (“A lawyer shall keep the client reasonably informed about the status of the matter”). The full text of these rules can be found here and here.
But what, if any, independent obligation does a client have to stay abreast of developments and demands in her case, even when she has retained counsel? And what happens when a lawyer fails to follow these generally accepted practices or his ethical obligations? At what point does the client become responsible for the consequences of her attorney’s actions, particularly where the attorney has kept the client in the dark? The Wisconsin Court of Appeals recently answered this question in Scudder v. Concordia University, 2025 WI App 13.
In Scudder, the plaintiff—Scudder—wanted to sue Concordia University. Having no prior experience with civil litigation, she looked for a lawyer with litigation experience specifically in school law and students’ rights. She hired an attorney whose advertisements listed expertise in those areas, and she trusted this attorney to zealously advocate on her behalf.
As the litigation proceeded, the circuit court held a scheduling conference early in the case. And, as is standard practice, Scudder’s attorney attended but Scudder did not. But here is where the problems began for Scudder. Scudder was unaware of the scheduling conference, and her attorney never gave her a copy of the scheduling order or otherwise informed her of the deadlines that were ultimately issued at the conference. Although he was in communication with her during the relevant time frame, Scudder’s attorney never asked Scudder for the names of any witnesses and then missed the deadline set for Scudder to file her witness list.
Next, Concordia served Scudder’s attorney with discovery requests. As is standard practice, and pursuant to SCR 20:4.2(a), Concordia did not copy Scudder on its emails to Scudder’s attorney. However, Scudder’s attorney never forwarded the discovery requests to her or otherwise informed her of them at all. Scudder’s attorney then blew the response deadline and multiple self-imposed extensions to the deadline, and he never informed her of the missed deadlines. Then, Concordia served a notice for Scudder’s deposition. But Scudder’s attorney never told her about it, and no one showed up on her behalf at the scheduled date and time. And when Scudder’s attorney finally provided Concordia with discovery responses, they were incomplete and unverified—and Scudder remained in the dark about everything. Scudder began getting concerned when she didn’t hear anything about her case, so she called her attorney numerous times between May and July. But he never returned her calls.
Eventually, Concordia filed a motion seeking sanctions as a result of Scudder’s attorney’s conduct, including attorney’s fees and an order precluding Scudder from introducing evidence of her damages—something that Concordia had asked for in its discovery requests but did not receive. The circuit court held a hearing on this motion, but Scudder did not know about it and did not appear. However, her attorney was a no-show, too. Ultimately, the court granted Concordia’s sanctions motion and entered an order requiring Scudder to personally pay Concordia’s attorney’s fees of $5,129.06 incurred in bringing the motion.
Scudder did not learn about the order or the fee award until almost a month later when she checked the case docket on CCAP. She retained new counsel, who filed a motion for relief from the order for sanctions and requesting to amend the scheduling order. Concordia then filed a motion for summary judgment, arguing that Scudder had no admissible evidence that she suffered damages, because she was barred from introducing such evidence as a sanction. The motions were heard on the same date, and the circuit court considered whether Scudder, personally, was truly blameless.
Under a “reasonable and prudent person” standard, the circuit court held that Scudder was to blame for her attorney’s actions, because Scudder knew “something [was] not going on quite right and she still wait[ed]” and “did nothing aside from making numerous calls [to her attorney] from May to July.” The circuit court also said that the issue of Scudder’s personal responsibility for the sanctions was “not really a decision for this Court” and suggested that Scudder “might have a cause of action” against her attorney—likely hinting at a malpractice action against her deficient attorney. The circuit court then granted Concordia’s motion for summary judgment. Scudder (with new counsel, of course) appealed the order finding her to blame for her lawyer’s conduct.
The Court of Appeals reversed the circuit court’s decision and explained that there are two elements to consider when deciding whether a client is personally culpable for a lawyer’s misconduct: first, the court must consider “the client’s failure to act in a reasonable and prudent manner;” and second, the court must consider “the client’s knowledge of or complicity in that conduct.” And in applying this test, the appellate court noted that, “as a practical matter, a layperson ordinarily cannot be expected to supervise his or her attorney through every pretrial phase of litigation.”
With these considerations in mind, the Court of Appeals found that Scudder was blameless. It pointed out that she was a first-time litigant who did not have personal knowledge of the deadlines in her case, nor was there any evidence that she had reason to know “that her case was teetering on the brink of being dismissed.” Scudder’s attorney assured her early on that the case was under control. While Scudder spoke with her attorney early in the case about witnesses, she was not aware of the requirement of a witness list or that it was overdue. She was similarly unaware that her discovery responses were deficient and untimely.
Additionally, the Court of Appeals criticized the application of “a bright-line rule that after three months without communication, a litigant is complicit in an attorney’s egregious conduct.” Rather, “simply recognizing an attorney is not taking a client’s calls does not necessarily and automatically lead to a conclusion that he is also ignoring litigation obligations.”
Thus, in a published decision, the Court of Appeals found that Scudder should not have been held personally responsible for her attorney’s (mis)conduct. Moreover, the Court of Appeals noted that even if some sanction against Scudder had been warranted, the circuit court’s choice of sanctions—effectively dismissing her case by granting Concordia’s motion to exclude evidence of damages—was far too draconian. The circuit court could and should have imposed other, less severe sanctions but instead “imposed a sanction that effectively eviscerated Scudder’s case” despite the fact that even Concordia had not requested it.
The Scudder decision should allow clients to rest at least a little easier if they need or want to retain counsel: a client is not expected to babysit her lawyer, nor is she assumed to know what her attorney knows about the status of the case. After all, it is the lawyer’s duty to “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” ABA Comment 1, SCR 20:1.3.