Sands v. Menard, Inc.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 71. (dissenting). I do not join the majority opinion because I conclude that the majority has "exceeded its powers" by "manifestly disregarding the law" in its decision to vacate the arbitration panel's award of reinstatement.

¶ 72. I agree with the circuit court and court of appeals, both of which denied Menard's motion to vacate the arbitration award for reinstatement of Dawn *682Sands. These courts reached the right result, largely because they correctly understood the very limited role courts play in reviewing arbitration awards.

¶ 73. At the circuit court, Judge Lenz observed that "at most, I find that this would be an error of law or fact and not enough to overturn the award. The arbitration panel did an analysis, looking at the... hostile environment... so they did what they were supposed to do." With regard to the claim that the award could be vacated for public policy reasons, the circuit court reasoned that "when a court bars enforcement of an arbitration award on public policy, that public policy must be clearly defined ... and dominant.... the arbitrator balanced it out, they talked about it, that's not a situation where it is an explicit public policy that is well-defined and dominant and referenced to the laws and legal precedent."1

¶ 74. At the court of appeals, Menard's claims were similarly dismissed as not approaching the standard for a court to vacate the discretionary remedy awarded in an arbitration to which the parties have voluntarily submitted. The court of appeals explained, "Menard essentially asks that we create law stating reinstatement is not a remedy for in-house attorneys .... This is inconsistent with the standard of *683review. We cannot conclude the arbitrators manifestly disregarded law that was nonexistent at the time of the arbitrators' decision."

¶ 75. Now, after Menard, who initially submitted to arbitration, has challenged the outcome of that arbitration through three courts, the majority does just what the court of appeals recognized that courts could not and should not do: The majority recognizes for the first time a "clear strong public policy" and concludes, as the panel did not, that the arbitration award would clearly lead to a violation of Sands' ethical obligations as an attorney and thereby violate public policy. On the basis of its newly announced public policy, and its own conclusion that the panel award would necessarily violate that policy, the majority vacates the arbitration award in the very case where it first sets forth the policy. Yet the ordinary standard of review is that "[i]f the correctness of the award, including its resolution of the public-policy question, is reasonably debatable, judicial intervention is unwarranted."2

¶ 76. The majority's result undermines the goals and practice of arbitration in Wisconsin and defeats the intent of the parties who entered this arbitration in particular. How will parties in the future who voluntarily submit to arbitration be confident that the efficient and final resolution that arbitration promises will not be set aside by this court? What other "strong public policies" may be lurking, not-previously articulated, that this court could use to vacate an arbitration award that one party seeks to escape and with which four members of this court simply disagree?

*684¶ 77. It may well be that in some eases a direct conflict will arise between the mostly state laws governing the attorney-client relationship and the mostly-federal statutes and case law governing employment discrimination, including the provisions for reinstatement. As nearly as I can tell, this touches on a question of first impression, whether in some circumstances, employment reinstatement ordered under the federal employment law may violate a state's attorney-client law, and if so, how to resolve the two?3 But the place to resolve novel and emerging questions of law is not in a court's review of a private arbitration award. Parties submit disputes to arbitration to reach swift resolution and specifically to avoid the lengthy appeals in which courts can definitively resolve every question of law and in the process create precedent.4 Review of an arbitration to which parties voluntarily submitted is not the appropriate vehicle for this court to announce new rules of law or to hold forth about generalized public policy.

*685¶ 78. Although the majority's conclusions about a public policy are indeterminate, there is no doubt that attorneys have fiduciary and ethical duties and obligations of professional conduct. Other employees also have fiduciary and ethical obligations to their employers.

¶ 79. The problem is that the majority is unable to pin down a particular rule, duty, or obligation or offer more than its own repeated assertions that if the award stands, a violation of ethical obligations would be the necessary result. The majority claims that because the panel did not affirmatively discuss Sands' ethical duties as an attorney, this necessarily implies that the panel "never examined whether Sands could ethically perform her role if it awarded reinstatement." Majority op., ¶ 63. The majority parlays this supposition into the conclusion that the award of reinstatement "would have the practical effect of forcing Sands to violate her ethical obligations." Majority op., ¶ 65. Both the claim and the observation are at best speculative and moreover are belied by the record.

¶ 80. There is no reason to believe, much less to affirmatively conclude as the majority has done, that the arbitration panel did not consider the applicability of Sands' ethical obligations as an attorney. It is no secret that Sands is an attorney. Through its 49-page factual review, legal analysis, and ultimate findings, the panel was amply aware of Sands' professional role and her responsibilities toward the Menard corporation, its officers, and the individuals representing the corporation. The panel explicitly acknowledged the "difficult[y]" of the "hostile" relationship between the parties. In doing so they necessarily assessed the dynamic between attorney and client and the issues inherent therein. Even if there were uncertainty as to what law *686the panel did or did not consider, the majority oversteps its bounds in review of an arbitration award when it construes ambivalence or silence in the record to justify overturning a result it disfavors. As the majority recognizes, the party seeking to overturn the panel award bears the burden of proof.

¶ 81. Significantly, Sands and Menard explicitly stipulated that each member of the panel would be an attorney. Each of the arbitrators was an experienced and successful attorney, themselves bound by the Rules of Professional Conduct and bound to be versed in those rules, which the majority opinion invokes to justify its result in the present case.

¶ 82. According to Martindale-Hubbell and the law firm Web sites of each of the arbitrators, Attorney Peter Reinhardt has been licensed to practice in Wisconsin for 15 years, specializes in employment law, and has appeared before this court as well as the Federal 7th and 8th Circuit Courts of Appeals; Attorney Carol Skinner has been licensed to practice in Wisconsin for 26 years and specializes in employment law as well as alterative dispute resolution; and Attorney Aaron Halestead has been licensed to practice in Wisconsin for 20 years, specializes in employment law, and is a long-time member of the Board of Directors of the Labor and Employment Section of the State Bar of Wisconsin, where he served as Chairperson from 2003-04.

¶ 83. It strains credulity when the majority assumes these three attorneys failed to consider the rules of their profession or the nature of the attorney-client relationship when they assessed whether a reinstatement award would be feasible on the facts before them. The majority considerably exceeds the supervisory role of a court in review of an arbitration award when it *687construes the record to presume that a capable arbitration panel somehow ignored the obvious.

¶ 84. The majority declares that in order to vacate an arbitrator's award on the grounds of public policy, "[a] public policy violation must be clear, and the burden of proving such a violation rests with the party seeking to overturn the award." Majority op., ¶ 50. The majority does not, however, apply this standard to the instant case.

¶ 85. Rather, the majority attempts to persuade us that every one of the three arbitrators, along with the circuit court judge, the three judges on the court of appeals panel, and Sands herself, all lawyers, all overlooked a "clear violation of a strong public policy" and that all the lawyers involved in the present case overlooked the majority's own determination that "Sands cannot in good faith represent Menard without violating her ethical obligations." Majority op., ¶ 56.

¶ 86. While apparently the public policy relied on by the majority was neither so "clear" nor so "strong" that any prior attorney or tribunal spotted it, the majority nevertheless pronounces that it "cannot countenance" the panel's award of reinstatement on the basis of a newly-minted "clear strong public policy." See majority op., ¶ 52.

¶ 87. The strong public policy violated here, in the majority's view, is apparently embedded in an attorney's various ethical obligations.5 Majority op., ¶ 49. The *688majority discusses in general terms the attorney's fiduciary duty of loyalty and the Rules of Professional Conduct, SCR 20:1.7(a)(2), relating to "a personal interest." Majority op., ¶¶ 53, 61.

¶ 88. The majority cites SCR 20:1.7(a)(2), which states that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if.. . there is a significant risk that the representation of one or more clients will be materially limited by. .. a personal interest of the lawyer" (emphasis added).

¶ 89. The majority goes on to hold that it is "clear that Sands can not in good faith represent Menard without violating her ethical obligations as an attorney." Majority op., ¶ 56. The majority's opinion is unpersuasive. It is far from clear that if the reinstatement award stands, Sands will necessarily violate this ethical obligation.

*689¶ 90. First, the commentary to this section of the Rules, SCR 20:1.7(a) (2) indicates that the phrase "personal interest" refers not to one's own emotive state or stake, but rather to substantive, material conflicts of interest.6 Notably, the comments identify business-related examples, such as "when a lawyer has discussions concerning possible employment with an opponent of the lawyer's client," and further direct the reader to "Rule 1.8 for specific Rules pertaining to a number of personal interest conflicts, including business transactions with clients." No such objective, material business conflict has been identified here as a conflicting "personal interest" of Sands. Instead, the majority seems to stretch the meaning of "personal interest" to the subjective and amorphous area of Sands' "feelings" toward Menard.

¶ 91. The majority comes up short on citations to cases in Wisconsin or any other jurisdiction that have interpreted the Rules of Professional Conduct to cover "feelings" analogous to what the majority argues is the problem here, although the majority opinion is filled with pronouncements about a lawyer's obligations to the client and the strong public policy of the state of Wisconsin. Under these circumstances, with apparently no prior precedent, how can the majority conclude that Menard has met its burden of proving such a violation, let alone that it is clear or obvious that public policy would be violated by this award? The obvious conclusion is that Menard has not met its burden. The majority's contrary conclusion represents the majority's flat refusal to apply the standard of review that it espouses. "The court will not relitigate issues submitted *690to arbitration." Franke v. Franke, 2004 WI 8, ¶ 3 & n.8, 268 Wis. 2d 360, 674 N.W.2d 832 (quoting Joint Sch. Dist. No. 10 v. Jefferson Educ. Ass'n, 78 Wis. 2d 94, 116-18, 253 N.W.2d 536 (1977)).

¶ 92. Second even assuming that "feelings" are within the scope of SCR 20:1.7(a)(2), this case still does not provide sufficient support for the majority's contention that Sands would "clearly" violate her ethical obligations by that "personal interest." While the majority cites a string of emotionally charged language from Sands at the arbitration hearing,7 this reference does little more than establish Sands' level of personal affront from the situation of her discharge, a view which was apparently shared by the panel that ordered reinstatement. Her statements do not establish that an ethics violation either had or would occur if the reinstatement award were to stand. Of all the quotes reported by the majority in sensationalist fashion, none refers at all to Sands' opinion or that of the panel or any other party as to her own future conduct or ethical obligations with respect to Menard.8

*691¶ 93. Thus it is not clear at all what specific ethical breach the majority fears, or from exactly what "personal interest" of Sands it would stem, much less that any breach at all is an inevitable foregone conclusion. Such a vague rationale would not suffice for a trial court's sua sponte disqualification of an attorney.9 It is hard to see how an equally vague expectation of a conflict is sufficient to allow this court, barred from free-wheeling fact-finding and limited to a supervisory role in reviewing an arbitral award, to reach the conclusion that a future ethics violation is a certainty.

*692¶ 94. The majority restates its conclusion that Sands cannot ethically represent Menard in various ways: that "no reasonable person would consider reinstatement"; that "a productive setting" was not possible; that "nothing good could possibly come from reinstatement." None of these conclusions is tied to any legal standard or any particular attorney ethics obligation. Together they offer little more than the majority's own restatement of its speculation about the facts that would result from reinstatement. Again, the majority does not meet the standard of establishing a clear public policy or show that Menard has met the burden of proof.

¶ 95. Third, the majority's holding that letting the reinstatement award stand would "force" or "require" Sands to violate her ethical obligations is not supported by the record and defies logic. The majority assumes that only a single course of conduct can result from Sands' reinstatement — namely, Sands' professional misconduct following a return to employment at Menard.

¶ 96. Suppose, faced with reinstatement, both parties accede to Sands' return. It is neither impossible nor unreasonable to think that as the resolution gleaned from arbitration took hold, hurt feelings would fade and be overtaken by the professional nature and interests of both parties.10 It is entirely possible that Sands could resume her representation with no ethical violation whatsoever. More importantly, the award of reinstatement gives Sands the opportunity to make that assessment for herself. Sands would be the most capable person to do so. Oddly, the majority seems to find itself better positioned than the lawyer involved. *693The majority without hesitation reports "it is clear that Sands cannot in good faith represent Menard without violating her ethical obligations as an attorney."

¶ 97. With great self-certainty, the majority concludes that "an arbitration award requiring an attorney to violate her ethical obligations is void as a matter of strong public policy." Majority op., ¶ 64 (emphasis added). Yet nothing in the award of reinstatement requires Sands to violate her ethical obligations. If, as the majority predicts, allowing the reinstatement award to stand would force or require Sands to commit an ethical obligation, then she has a simple solution: resign. It was Menard that defied the reinstatement award, not Sands. In the event Sands resigns, the panel's award might in fact result in less than the make-whole remedy intended by the law, and might represent a "raw deal" for Sands, but courts do not vacate a valid arbitration award simply because the panel has awarded a remedy worth less than a reviewing court later sees as appropriate.

¶ 98. There is another potential outcome that the majority does not acknowledge. If the reinstatement award stands, and if the parties truly view reinstatement as untenable and mutually undesirable, then rather than enter a situation where, in the majority's view, an ethical violation is likely to occur, the parties could simply negotiate a settlement that avoids Sands' actual return to Menard. Courts and commentators alike have recognized that parties are free to reach a more efficient or desirable result by negotiating an alternative solution to a court-imposed remedy.11 As Judge Posner observed in a case considering employment reinstatement, "the *694social costs of [reinstatement] may be avoided by corrective transactions."12 In other words, if the parties could not live with reinstatement, they were free to negotiate for another result.13

*695¶ 99. Given the panel's awareness of Sands' ethical responsibilities as an attorney, given the panel's consideration of the relationship between the parties, given the majority's conclusory and unsubstantiated interpretation of the Rules of Professional Conduct as allegedly governing this situation, and given that reinstatement does not actually require any violation of the Rules of Professional Conduct, the majority cannot reasonably conclude that Menard has proven that allowing the reinstatement award to stand would violate any clear strong public policy. The most one can say (and one would be stretching to do so) is that a public policy violation might be possible in the future, leaving its actual realization uncertain and reasonably debatable. Under such circumstances, the arbitrators' award is not a clear and proven violation of a clear strong public policy. The majority's saying there's a violation of a clear strong public policy, and then saying it again, does not make it so. At worst, the arbitrators' award presents a reasonably debatable problem on lawyer ethics grounds.

¶ 100. Under such circumstances, the normal and well-established rules of deference to the arbitral process must prevail. These statements of the rules of deference are many:

¶ 101. "Where the parties have agreed to submit their dispute to binding arbitration, an award that is not *696clearly in violation of public policy should be given effect."14

¶ 102. "[Cjourts should not disturb the award merely because of disagreements with arbitral fact findings or because the arbitrator's application of the public policy principles to the underlying facts is imperfect. If the correctness of the award, including its resolution of the public policy question, is reasonably debatable, judicial intervention is unwarranted."15

¶ 103. It is abundantly clear that no violation of a clear, strong public policy is sufficiently manifest in the present case by either the process used by the arbitration panel or the arbitration award. Of the remaining grounds for vacating an arbitral award, as a strong public policy violation is absent, none otherwise apply.

¶ 104. Because reinstatement here does not violate a clear and strong public policy, the choice of remedy was for the arbitration panel. The panel had no way of anticipating that this court would use the present case to announce a clear, strong public policy against reinstatement. Resolution of the remedy was well within the panel's discretion.

¶ 105. To overturn the panel's exercise of discretion, a court must conclude that the arbitrators exceeded their powers. Wis. Stat. § 788.10(1) (d). A typical ground for arguing a panel has exceeded its powers is that the arbitrators manifestly disregarded the law.16 "Manifestly disregarding the law" has been described as not understanding the law or correctly stating the law *697but ignoring it.17 "Manifestly disregarding the law" has also been described as "making no attempt to apply or interpret the relevant. . . law."18

¶ 106. The arbitration panel in this case was very thorough. It analyzed the law and correctly stated it. It made every attempt to apply its correct interpretation of the relevant law to the facts. The panel's reasoning is extremely detailed. In no way can these arbitrators be viewed as having manifestly disregarded the law.

¶ 107. In its resolution, the arbitration panel did no more than order one of several remedies it was entitled to choose from, a remedy that is often identified as the "preferred" remedy and which the panel was in fact obligated to consider.19

¶ 108. Reinstatement may be ordered even when the parties do not favor it and even when relationships between the parties are acrimonious. According to the case law, "reinstatement is not infeasible simply because a plaintiff claims that he or she does not get along with the employer or because the plaintiff claims that he or she is not comfortable working for someone who previously terminated him or her."20

¶ 109. Courts have explained that "[t]he equitable remedy of reinstatement requires ... a delicate balance. On the one hand, reinstatement is the preferred remedy *698for victims of discrimination. On the other hand, a [decision maker] is not required to reinstate a successful plaintiff where the result would be a working relationship fraught with hostility. A [decision maker] must be careful, however, not to allow an employer to use its anger or hostility toward the plaintiff for having filed a lawsuit as an excuse to avoid the plaintiffs reinstatement."21

¶ 110. The majority goes to great lengths to establish that in cases analogous to this one, reinstatement, although discretionary, may be "inappropriate." See majority op., ¶ 37-46. In its analysis of the remedial framework for Title VTI violations, the majority uses the word "appropriate" or "inappropriate" at every turn. If the standard for vacating an arbitration award was when the award was "inappropriate," then the majority's treatment on this issue would be very persuasive indeed. But "inappropriate" is not the standard.

¶ 111. The majority's choice and use of case law on reinstatement only further reveals how far from the proper standard of review for arbitration the majority's analysis has strayed. The majority relies on federal cases in which either a federal district court is deciding the appropriate remedy or a federal appellate court is reviewing (and generally affirming) the discretionary decisions of the federal trial court.22

*699¶ 112. The majority's authority is thus drawn exclusively from cases in which an appellate court reviews a trial court judgment regarding reinstatement, applying normal appellate standards of review. The majority does not cite a single case in which a court reviews an arbitration panel awarding the remedy of reinstatement. In reviewing a trial court's judgment for *700reinstatement, an error of law would be sufficient for an appellate court to reverse the discretionary ruling of the trial court, applying an erroneous exercise of discretion standard of review.23 In contrast, an error of law is not a sufficient basis for a court to overrule an arbitration award. A "court will not overturn the arbitrator's decision for mere errors of law or fact."24 This rule is in accord with the recognition that the parties have contracted for the arbitrator's decision— not the court's.

¶ 113. The proper interpretation and application of SCR 20:1.7(a)(2) to the instant case are at most reasonably debatable. The effect of the application of the rule is uncertain and relies on the majority's assumptions. Therefore, no violation of a clear, strong public policy resulting from the arbitration panel's award can be clearly established. If the arbitrators erred in inter*701preting the rule, they made an error of law.25 Yet as previously stated, the proper standard of review for an arbitration award dictates that an error of law does not justify vacating the award. Thus even allowing for the majority's stretches of interpretation and assumptions about outcome, the majority reaches an erroneous result.

¶ 114. In the end, the only thing that is "clear" from the majority's treatment of the present case is that the majority does not like the reinstatement award and has substituted its discretion for that of the arbitrators, in violation of the limitations on the court's standard of review.

¶ 115. Because no clear violation of a strong public policy is present here, and no other grounds exist for vacating the arbitration panel's award as exceeding its powers, the majority's analysis becomes little more than a strained analytical effort to overturn an arbitration award with which four members of this court disagree. The majority has improperly extended the authority of this court, at the cost of the well-established and highly deferential standard of review a court gives to arbitration awards.

¶ 116. For the reasons set forth, I write separately in dissent.

¶ 117. I am authorized to state that Justices ANN WALSH BRADLEY and N. PATRICK CROOKS join this opinion.

The circuit court relied on Local P-1236 v. Jones Dairy Farm, 680 F.2d 1142, 1145 (7th Cir. 1982).

The circuit court further recognized, as the majority does not, that its own view of whether the award was "appropriate" or a good idea was not at issue. Judge Lenz commented, "[T]he court may look at this and say that part of the award was really stupid ... but the court doesn't substitute its judgment for the judgment of the arbitrator because that's not what you bargained for."

Weiss v. Carpenter, Bennett & Morrissey, 672 A.2d 1132, 1144 (N.J. 1996).

A Non-Party Brief filed in this case asserts that "the Court is faced with a case of first impression" and further describes the potential tension in the law governing "in-house" attorneys:

While in-house counsel enjoy the same attorney/client relationship that attorneys in private practice have with their clients, in-house counsel also have the relationship of employer and employee, and those two separate relationships can be the source of tension as someone whose livelihood is tied to one employer must also respect and fulfill his or her professional duties as an attorney.

Non-Party Brief of Byron F. Egan, 2, 6.

See majority op., ¶ 48 ("Our task is to ensure that the parties receive what they bargained for — the adjudication of their dispute via the arbitration process." (citing Lukowski v. Dankert, 184 Wis. 2d 142, 149, 515 N.W.2d 883 (1994)).

I qualify my statement as an "apparent" conclusion because the majority's opinion seems to float between multiple articulations of the public policy that was violated. The majority first seems to rest its holding on Sands' unspecified "ethical obligations, particularly an attorney's duty of loyalty", but the majority cites only one specific section of the Rules of Professional Conduct (SCR 20:1.7(a)(2)). See also majority op., ¶ 53. *688Despite this, the majority also makes liberal use of generic references to attorneys' fiduciary duties of loyalty to clients, and the "confidence and trust underlying the attorney-client relationship," as established by case law. See, e.g., majority op., ¶ 53.

In light of these references, it is -unclear whether the majority relies solely on SCR 20:1.7(a)(2) or on an amalgam of this one rule and other sources of more general ethical obligations. If the basis for vacating the award is a hypothesized violation of one rule, how does the majority conclude that this is "strong public policy," rather than a simple attorney ethics violation? If, on the other hand, discerning the "public policy" that would allegedly be violated by reinstatement requires the majority to rely on novel inferences to reach its conclusion, how then was the arbitration panel to recognize a public policy that meets the standard "that when a court bars enforcement of an arbitration award on the basis of public policy, that public policy must be clearly defined"? See Local P-1236 v. Jones Dairy Farm, 680 F.2d 1142, 1145 (7th Cir. 1982).

See Wis. Stat. Ann. SCR 20:1.7 (2009) (setting forth the ABA Comments).

Majority op., ¶¶ 57-58.

To support the proposition that an attorney's ethical duties constitute public policy grounds to vacate an arbitration award, the majority cites two cases in which a specific rules violation would be compelled by an arbitration award. See majority op., ¶ 55. In the present case, no specific rules violation is identified that would necessarily follow from the award. In both of the cited cases, the parties had already entered private agreements that would violate specific rules provisions if enforced by arbitration, a result the courts did not allow.

In Matter of Silverberg, 75 A.D.2d 817, 427 N.Y.S.2d 480 (N.Y. App. Div. 1980), the court did not vacate an arbitration award. The petitioner sought enforcement of a partnership *691provision that prevented other members of his firm from servicing his clients. The court held that the provisions of the partnership agreement, if enforced, would violate the Code of Professional Responsibility Disciplinary Rules 2-107. The court therefore refused to allow the matter to be arbitrated. The case is unlike the present case, where no rules violation would be a necessary result and the parties have already voluntarily agreed to arbitration.

In Perkins & Mario, P.C. v. Annunziata, 694 A.2d 1388 (Conn. App. 1997), the arbitral panel awarded legal fees to a discharged attorney who handled a personal injury matter on a contingency fee basis and had no written fee agreement. The Rules of Professional conduct forbid such an arrangement, and the result would also have violated a statute prohibiting excessive legal fees. The court vacated the award on appeal, which it recognized as "the exceptional case": where the award in contravention of both statute and a very specific rules provisions "violates clear public policy."

See State v. Peterson, 2008 WI App 140, ¶ 23, 314 Wis. 2d 192, 757 N.W.2d 834 (finding "attorney disqualification should not be imposed cavalierly" and a lower court's decision to disqualify an attorney was an erroneous exercise of discretion because "the court did not explain what problem it anticipated if [the attorney] continued, the court did not describe any potential ethical violation that might arise ... before deciding to disqualify [the attorney].").

In point of fact, this very proceeding now demonstrates the likeliness of that outcome had reinstatement been left undisturbed, as Sands today states she is both willing and able to continue to professionally represent Menard.

See, e.g., Youngs v. Old Ben Coal Co., 243 F.3d 387 (7th Cir. 2001) (acknowledging the reality of negotiation around judgments granting specific performance: 'Youngs is seeking, *694but not wanting, specific performance. If he obtained the relief he is seeking, that would just be a prelude to a further negotiation with Old Ben.")

Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1232 (7th Cir. 1995) (citing R.H. Coase, The Problem of Social Cost, 3 J. Law & Econ. 1 (I960)).

In the present case, the circuit court did not require academic commentary to recognize as a practical matter that what was at stake was likely just a question of putting a price tag on the reinstatement award. If the circuit court whose order Menard defied recognized that at that time Sands was not likely to actually return to Menard and that an ethical violation was not actually going to take place, how is the majority so certain that the "reinstatement order would have the practical effect of forcing Sands to violate her ethical obligations"? See majority op., ¶ 65. The circuit court had a very different view of "the practical effect" of the award:

[T]he parties agreed to arbitration, and the arbitrator's award, I'm going to use the card game, this is the hand that's dealt out, and somebody got dealt the joker, okay, how much is this worth? They ordered this. How much is this worth?

The circuit court then posited three different alternative ways the court might proceed to place a value on the arbitration under the court's authority:

Alternative number one is... to go back and have that issue arbitrated.... Two, that this court now is to provide a value, that is damages, with regard to what the not reinstatement is worth . .. Or third... file a separate law suit... have a jury decide how much this was worth.

An argument can be made that such a negotiated result would better establish the "make whole" value of what reinstatement (or avoiding reinstatement) is actually worth to the parties, rather than asking a court to provide this value though an award of damages or a determination of front pay. "Promisees know *695better than courts whether the damages a court is likely to award would be adequate because promisees are more familiar with the costs that breach imposes on them." Alan Schwartz, The Case for Specific Performance, 89 Yale L.J. 271, 277 (1979). Courts also recognize that a solution negotiated between the parties outside of court may reduce "the parties' expenditures on preparing and presenting evidence of damages, and the time of the court in evaluating the evidence." Walgreen Co. v. Sara Creek Prop. Co., B.V., 966 F.2d 273, 276 (7th Cir. 1992).

Hackett v. Milbank, Tweed, Hadley & McCloy, 654 N.E.2d 95, 102 (N.Y. 1995) (emphasis added).

Weiss v. Carpenter, Bennett & Morrissey, 672 A.2d 1132, 1145 (N.J. 1996).

Racine County v. Int'l Ass'n of Machinists & Aerospace Workers, 2008 WI 70, ¶ 11, 310 Wis. 2d 508, 751 N.W.2d 312.

Lukowski v. Dankert, 184 Wis. 2d 142, 149, 515 N.W.2d 883 (1994).

Racine County v. Int'l Ass'n of Machinists & Aerospace Workers, 310 Wis. 2d 508, ¶ 33.

Kempfer v. Automated Finishing, Inc., 211 Wis. 2d 100, 120, 564 N.W.2d 692 (1997) (holding that "[f]ront pay is only an available remedy in those cases in which ... reinstatement is not feasible").

Id.

Bruso v. United Airlines, 239 F.3d 848, 861 (7th Cir. 2001) (citations omitted).

EEOC v. Kallir, Philips, Ross Inc., 420 F. Supp. 919 (S.D.N.Y. 1976) (district court decision ordering front pay following a jury verdict finding wrongful termination); Williams v. Pharmacia, Inc., 137 F.3d 944 (7th Cir. 1998) (reviewing a district court order denying reinstatement); McNeil v. Econ. Lab., Inc., 800 F.2d 111 (7th Cir. 1986) (reviewing a *699district court order denying front pay; McKnight v. Gen. Motors Corp., 908 F.2d 104 (7th Cir. 1990) (reviewing a district court order denying reinstatement); Taylor v. Teletype Corp., 648 F.2d 1129 (8th Cir. 1981) (reviewing a district court order denying reinstatement); Sasser v. Averitt Express, Inc., 839 S.W.2d 422 (Tenn. Ct. App. 1992) (reviewing a circuit court damages judgment for wrongful termination); Whittlesey v. Union Carbide Corp., 567 F. Supp. 1320 (S.D.N.Y. 1983) (district court bench trial awarding the plaintiff damages over reinstatement); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir. 1992) (reviewing a district court judgment awarding front pay); Cancellier v. Federated Dep't Stores, 672 F.2d 1312 (9th Cir. 1982) (reviewing a judgment of a district court denying reinstatement); Goss v. Exxon Office Sys. Co., 747 F.2d 885 (3d Cir. 1984) (reviewing a district court decision limiting front pay to four months); Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945 (10th Cir. 1980) (reviewing a judgment from a special jury verdict awarding front pay); Hoffman v. Nissan Motor Corp. in U.S.A., 511 F. Supp. 352 (D.N.H. 1981) (reviewing an amended jury verdict); Dickerson v. Deluxe Check Printers, Inc., 703 F.2d 276 (8th Cir. 1983) (reviewing an order from a district court denying additional equitable relief); Coston v. Plitt Theatres, Inc., 831 F.2d 1321 (7th Cir. 1987) (reviewing a judgment from a district court denying both reinstatement and front pay); Hyland v. Kenner Prods. Co., 13 Fair Empl. Prac. Cas. (BNA) 1309 (S.D. Ohio 1976) (reviewing a circuit court judgment denying plaintiffs attorney's fees); Combes v. Griffin Television, Inc., 421 F. Supp. 841 (W.D. Okla. 1976) (awarding back pay and benefits in light of a jury verdict for the plaintiff finding wrongful termination).

See, e.g., McNeil, 800 F.2d 111 at 118 ("The decision whether or not to award front pay [rather than reinstatement] is, of course, within the discretion of the district court. We need only review the decision of the district court for an abuse of discretion"); Taylor, 648 F.2d 1129 at 1139 ('We cannot conclude that the district court abused its discretion in mandating reinstatement and, therefore, affirm that order"); Cancellier, 672 F.2d 1312 at 1320 ("Moreover, in view of the substantial verdict the judge did not abuse his discretion in [denying reinstatement]"); Goss, 747 F.2d 885 at 890-91 ("[W]e find no abuse of discretion in the choice of remedy ... awarding [plaintiff] front pay in lieu of reinstatement"); Coston, 831 F.2d 1321 at 1332 ("[We determine] that the district court did not abuse its discretion in denying reinstatement").

Madison v. Madison Prof'l Police Officers Ass'n., 144 Wis. 2d 576, 585, 425 N.W.2d 8 (1988) (quoting Milwaukee Bd. of Sch. Dirs. v. Milwaukee Teachers' Educ. Ass'n, 93 Wis. 2d 415, 422, 287 N.W.2d 131 (1980)).

In an attorney discipline case enforcing the rules, a referee would interpret and apply the rule, a question of law. This court would not be bound by the referee's interpretation or application, a question of law.