Foley-Ciccantelli v. Bishop's Grove Condominium Ass'n

PATIENCE DRAKE ROGGENSACK, J.

¶ 137. {concurring). The lead opinion concludes that the defendants have standing to object to the plaintiffs' choice of attorney in this slip and fall negligence action. The lead opinion so concludes based on a potential witness's past employment of the plaintiffs' attorney's law firm for land and condominium development that is unrelated to the Bishop's Grove Condominiums.1 The interest that the lead opinion identifies is the attorney-client confidences of the potential witness that are protected by Supreme Court Rule (SCR) 20:1.9.2

*464¶ 138. I do not join the lead opinion for three reasons: (1) it creates and then applies a new test for standing that does not require Bishop's Grove to make a showing that it has a legally protectable interest in the Cramer law firm's attorney-client relationship with a potential witness; (2) it employs ch. 20 of the Supreme Court Rules as a legal basis upon which to confer standing to Bishop's Grove to disqualify plaintiffs' attorney; and (3) whether defendants have standing to challenge plaintiffs' choice of attorney based on a communication of Bishop's Grove's confidential information cannot be decided conclusively on the record before us. Accordingly, I would remand to the circuit court to hold an evidentiary hearing in order to permit Bishop's Grove to demonstrate whether Wayne Foster improperly transmitted Bishop's Grove's confidential information to plaintiffs' attorney.

I. BACKGROUND

¶ 139. The background underlying this appeal is ably set out in the lead opinion. Therefore, I relate only what is necessary to understand this concurrence.

¶ 140. On February 1, 2007, Susan FoleyCiccantelli and her husband, Mark Ciccantelli, purchased Unit 175C in the Bishop's Grove Condominiums, Inc. (Bishop's Grove). On February 6, 2007, Susan slipped and fell on ice in the driveway of Unit 175C, a common area of Bishop's Grove. She sustained serious injuries that have required multiple surgeries.

¶ 141. Susan and Mark retained Attorney Timothy Andringa of the law firm of Cramer, Multhauf & Hammes, LLP (Cramer law firm) to represent them in regard to Susan's slip and fall. As part of his representation, Attorney Andringa contacted State Farm Fire & *465Casualty Company's (State Farm)3 adjuster about his clients' claim. When the adjuster responded that Bishop's Grove was not responsible for ice on the driveway of Susan's condominium, Attorney Andringa contacted Wayne Foster. The Foster Group, Ltd., Wayne Foster's agency, manages Bishop's Grove. Attorney Andringa asked Foster to explain to the adjuster where the common areas of Bishop's Grove are and that Bishop's Grove is responsible for maintaining common areas.

¶ 142. Attorney Andringa was familiar with Foster because Attorney Peter Plaushines of the Cramer law firm had represented Foster and The Foster Group in land and condominium development unrelated to Bishop's Grove. The law firm of Reinhart Boerner Van Deuren S.C. (Reinhart law firm) represented Wayne Foster and The Foster Group in regard to the development and management of Bishop's Grove.

¶ 143. No settlement was reached with State Farm. Therefore, on May 7, 2008, Attorney Andringa filed suit against Bishop's Grove and State Farm. He alleged that Susan's injuries were caused by Bishop's Grove's negligent maintenance of the common area where Susan fell.

¶ 144. On January 26, 2009, Bishop's Grove moved to disqualify Attorney Andringa from representing Susan and Mark. The motion alleged that Foster was the exclusive agent for managing Bishop's Grove and that Foster had a "long standing attorney/client relationship with the Cramer law firm." The motion further alleged that "The Cramer firm could have obtained facts, information or knowledge to use against Foster in this case regarding knowledge of condominium documents, their interpretation and continuing duties under property *466management." And finally, the motion alleged, "To establish liability against Bishop's Grove it is likely Cramer will need to prove that their former client did something wrong as it pertained to duties and obligations under the condominium documents vis-á-vis the plaintiff or failed in their duties of property management thus placing Cramer in an adverse position as to a former client."

¶ 145. Foster submitted an affidavit in which he averred Attorney Plaushines has represented Foster and The Foster Group "for a variety of business matters." Foster mentions Attorney Plaushines' representation of The Foster Group in "Ruffs Preserve," "Water's Edge" and "Island View." Foster does not aver any connection between Attorney Plaushines and Bishop's Grove, nor does he aver that Attorney Andringa received confidential information about Bishop's Grove in regard to the management agreement of Bishop's Grove, this pending lawsuit or any other matter.

¶ 146. Attorney Andringa submitted an affidavit explaining that his firm had run a conflict of interest check on Bishop's Grove before agreeing to represent Susan and Mark in this slip and fall action. He found that the Cramer law firm had never represented Bishop's Grove, nor has it had any involvement in the creation or development of Bishop's Grove.

¶ 147. Attorney Andringa attached a certified copy of the Articles of Incorporation of Bishop's Grove to his affidavit. That document shows that the Reinhart law firm prepared the condominium document.

II. DISCUSSION

¶ 148. The lead opinion concludes that Bishop's Grove has standing to object to Attorney Andringa's representation of Susan and Mark because of confi*467dences of Foster developed through past representations of him and The Foster Group by the Cramer law firm.4 It cites SCR 20:1.9 as the context in which Bishop's Grove's motion to disqualify Attorney Andringa is to be decided.5

¶ 149. The lead opinion errs in its discussion of Bishop's Grove's standing when it creates and then applies a new standing analysis6 and arrives at conclusions that are unsupported by facts in the affidavits of record.7

*468A. Standard of Review

¶ 150. We determine whether a petitioner has standing to proceed as a question of law that is subject to our independent review. Metro. Builders Ass'n of Greater Milwaukee v. Vill. of Germantown, 2005 WI App 103, ¶ 12, 282 Wis. 2d 458, 698 N.W.2d 301.

B. Standing Principles

¶ 151. Questions of standing are not new to Wisconsin courts. Well reasoned opinions have recently and repeatedly explained that a standing analysis has two parts. Krier v. Vilione, 2009 WI 45, ¶ 20, 317 Wis. 2d 288, 766 N.W.2d 517; Fox v. DHSS, 112 Wis. 2d 514, 524-25, 334 N.W.2d 532 (1983); Wis.'s Envtl. Decade, Inc. v. Public Serv. Comm'n of Wis., 69 Wis. 2d 1, 9-10, 230 N.W.2d 243 (1975).8

*469¶ 152. In Fox, an often cited case, we explained that standing to proceed requires the petitioner to prove that: (1) he has some "threatened or actual injury resulting from the putatively illegal action"; and (2) the injury or threatened injury is to his legally protectable interest, i.e., an interest of the petitioner that is recognized by law. Fox, 112 Wis. 2d at 524-25 (quoted citation omitted).

¶ 153. In Fox, District Attorney E. Michael Mc-Cann and other petitioners objected to the proposed location of a prison, contending the proposed location was too remote, thereby having the potential to cause adverse psychological effects on the inmates who would be far removed from their families. Id. at 526-27. In order to support their efforts to stop the building of the prison at the proposed location, the petitioners asserted that the Final Environmental Impact Statement (FEIS) failed to comply with the statutory requirements of Wisconsin's Environmental Policy Act (WEPA). Id. at 517. In the course of the litigation, petitioners' standing to challenge the FEIS was raised. Id. at 523.

¶ 154. We discussed the two parts of a standing analysis that are required in order to have standing to proceed under Wisconsin law. We explained that the actual or threatened injury resulting from the complained of action need not be large. Id. at 524. However, an "[ajbstract injury is not enough. The plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury." Id. at 525 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) *470(internal quotation marks omitted)). After a thorough discussion, we concluded that the petitioners lacked standing based on the first part of the standing test, i.e., petitioners had not set out a direct injury or the threat of such an injury that is personal to them and was caused by the proposed location of the prison. Id. at 529.

¶ 155. We also concluded that the petitioners had failed to show that any claimed injury is to a "legally protected interest" of the petitioners. Id. at 529. The petitioners had raised the WEPA as the legal protection for the interest they asserted. However, we concluded that WEPA provided no legal protection for their asserted interest, in part because "WEPA does not create a public trust in the environment such that any citizen of this State may bring suit to question compliance with its provisions." Id. at 531.

¶ 156. We again examined the two parts of the standing test in City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 332 N.W.2d 782 (1983). There, the City of Madison and Russell Mueller, a former resident of Fitchburg, objected to Fitchburg's incorporation resolution. Id. at 227. The City of Madison explained that the incorporation of Fitchburg would extinguish Madison's extraterritorial zoning and plat approval jurisdiction in Fitchburg, which interests were created by and conferred on Madison by statute. Id. at 231. We concluded that these factual allegations were sufficient to allege that Madison had a threatened direct injury to an interest that was legally protected because the interest was granted in the extraterritorial zoning and plat approval statutes. Id. at 231-32.9 Accordingly, we concluded that Madison had standing to proceed.

*471¶ 157. The lead opinion sets out a test for "all the cases... regardless of the nature of the case" as follows: "(1) whether the party whose standing is challenged has a personal interest in the controversy...; (2) whether the interest of the party whose standing is challenged will be injured, that is adversely affected; and (3) whether judicial policy calls for protecting the interest of the party whose standing is challenged."10

¶ 158. While I agree with the lead opinion that the test for standing has not always been stated with absolute clarity, I part company with the lead. opinion's elimination of the requirement that the petitioner must show it has a "legally protectable interest" that is being harmed. Removal of the "legally protectable interest" determination from the traditional Wisconsin standing test and replacing it with "whether judicial policy calls for protecting the interest of the party whose standing is challenged" changes a discernable legal standard to no standard at all. Thereafter, the determination of standing will be driven by whether a court thinks that "judicial policy" warrants standing, whatever that means.

¶ 159. Furthermore, removing the requirement to show a legally protectable interest in declaratory judgment actions will be a very significant change in Wisconsin's standing rules and cause unnecessary confusion. Long ago in Loy v. Bunderson, 107 Wis. 2d 400, 320 N.W.2d 175 (1982), we explained a four-part test for declaratory judgment that is currently employed. The test provides that in order to proceed to declaratory judgment, the following must be present:

*472(1)A controversy in which a claim of right is asserted against one who has an interest in contesting it.
(2) The controversy must be between persons whose interests are adverse.
(3) The party seeking declaratory relief must have a legal interest in the controversy — that is to say, a legally protectible interest.
(4) The issue involved in the controversy must be ripe for judicial determination.

Chenequa Land Conservancy, Inc. v. Vill. of Hartland, 2004 WI App 144, ¶ 11, 275 Wis. 2d 533, 685 N.W.2d 573 (citing Loy, 107 Wis. 2d at 410). There is no benefit to making such a change in long standing law.

¶ 160. The lead opinion also asserts that there has been no requirement to show a legally protectable interest outside of a claim based on constitutional provision, statute, administrative rule or declaratory judgment.11 Those are formidable categories of cases that the lead opinion will change. Furthermore, we have required a showing of a legally protectable interest when the claim was based on Wisconsin common law.

¶ 161. For example, in our recent discussion of standing in Krier, we addressed whether plaintiffs' contention that corporate identities should be disregarded to permit plaintiffs' common law claim. Krier, 317 Wis. 2d 288, ¶ 34. As we began our analysis, we emphasized that in order to have standing, "the plaintiffs must show that they suffered or were threatened with an injury to an interest that is legally protectable." Id., ¶ 20 (citing Chenequa, 275 Wis. 2d 533, ¶¶ 13-16). We concluded that the plaintiffs had no legally protect-*473able interest in a corporation's assets when they were not shareholders of that corporation; and therefore, they had no standing to proceed on their claim. Id., ¶ 34 (citing Rose v. Schantz, 56 Wis. 2d 222, 229, 201 N.W.2d 593 (1972)).12

C. Bishop's Grove Claim of Standing

¶ 162. Here, Bishop's Grove's attorney averred in his affidavit that Bishop's Grove has standing to object to Attorney Andringa's representation of Susan and Mark because a member of Attorney Andringa's firm, Attorney Plaushines, represented non-parties, Wayne Foster and The Foster Group. Consequently, Bishop's Grove's attorney claims that Attorney Andringa would know that Foster has general knowledge13 of how to interpret condominium documents and property management agreements; that Foster is the agent of Bishop's Grove and probably will be a witness at trial; and that plaintiffs may be required to prove Foster's management of Bishop's Grove was deficient in order to prevail on their claim.

*474¶ 163. Based on those allegations and applying well established Wisconsin law to Bishop's Grove's standing claim, it becomes apparent that Bishop's Grove does not clearly identify the two components necessary for standing: (1) a threatened or actual direct injury to Bishop's Grove and (2) a legally protectable interest of Bishop's Grove that is subject to the claimed injury.

¶ 164. When a petitioner does not clearly articulate those two components, it is difficult to evaluate accurately whether the petitioner may suffer a direct injury, without first evaluating whether the interest that the petitioner asserts is legally protectable for the petitioner. See Fox, 112 Wis. 2d at 531. In evaluating whether the interest asserted is a legally protectable interest of the petitioner who is asserting it, we examine whether the asserted interest is recognized by law. Krier, 317 Wis. 2d 288, ¶ 20. In determining whether the asserted interest is recognized by law as a legally protectable interest of the petitioner, it is helpful to consider the purpose for which the asserted interest was established and the intended beneficiaries of the law that established the claimed interest. Fox, 112 Wis. 2d at 531.

¶ 165. In Krier, we recently cautioned that while standing is to be liberally construed, the claim asserted must be legally recognizable in Wisconsin jurisprudence. Krier, 317 Wis. 2d 288, ¶ 22. We also discussed the requirement that a petitioner seeking standing must prove that it has a legally protectable interest before standing may be conferred in Waste Management of Wisconsin, Inc. v. DNR, 144 Wis. 2d 499, 424 N.W.2d 685 (1988). There, Waste Management sought to prevent the development of a landfill, claiming that the landfill would affect Waste Management's economic interests. Id. at 505. While we acknowledged that Waste Management's economic interests may be affected, we *475concluded that Wis. Stat. § 144.44(2)(nm) (1983-84), on which statute Waste Management relied to show its interest was legally protected, did not protect economic interests. Id. at 508-09. After a thorough discussion of all Waste Management's arguments, we concluded that Waste Management did not have standing to challenge the landfill because the interest to which it claimed injury was not a legally protected interest. Id. at 513.

¶ 166. In its brief, Bishop's Grove asserts that SCR 20:1.9 establishes legal protection for Bishop's Grove's interest in attorney-client confidences of former clients. However, Bishop's Grove has not alleged it is or was a client of the Cramer law firm. Instead, it raises Foster and The Foster Group's past attorney-client relationship with the Cramer law firm, without any allegation that the Cramer law firm has ever represented Foster or The Foster Group in regard to Bishop's Grove.

¶ 167. Bishop's Grove alleges that because Foster will be a witness in the trial of this case and the plaintiffs may attempt to show Foster's management contributed to Susan's slip and fall, Bishop's Grove has a legally protectable interest in assuring that the Cramer law firm does not use its knowledge of Foster's general familiarity with condominium creation and management to Bishop's Grove's disadvantage.

¶ 168. While Bishop's Grove may have an interest in assuring that Foster has not transmitted confidential information about Bishop's Grove to Attorney Andringa if it can allege facts showing such information, Bishop's Grove has no legally protectable interest that arises under SCR ch. 20. Also, it cannot be based on the attorney-client relationship alleged in the record before us because the attorney-client relationship asserted *476was not Bishop's Grove's attorney-client relationship. Mathias v. Mathias, 188 Wis. 2d 280, 283, 525 N.W.2d 81 (Ct. App. 1994).14

¶ 169. To explain further, Bishop's Grove raises SCR 20:1.9 directives that relate to protecting confidences of former clients. In relevant part, SCR 20:1.9 provides:

(c) A lawyer ... whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.

¶ 170. In order to prevail on a motion to disqualify an attorney based on the transmission of confidential information during legal representation in another matter, the petitioner must prove both parts of a two-part test: "(1) that an attorney-client relationship existed between the attorney and the former client; and (2) that there is a substantial relationship between the two representations." Mathias, 188 Wis. 2d at 283.

¶ 171. In Mathias, a husband attempted to disqualify the firm that was representing his wife in their divorce because that firm had acted as the husband's *477attorney for estate planning. Id. at 282. There was no dispute that an attorney-client relationship had existed between the husband and the wife's law firm. Therefore, there was little discussion about this part of the test, except to note that such proof was required in order for a petitioner to disqualify an attorney from a pending proceeding based on past legal representation. Id. at 283.

¶ 172. It is undisputed that Bishop's Grove has never been a client of the Cramer law firm. Therefore, Bishop's Grove has no attorney-client relationship with the Cramer law firm upon which to base its alleged interest under SCR 20:1.9 by which Bishop's Grove attempts to disqualify Attorney Andringa. Id.

¶ 173. Moreover, SCR 20:1.9 is directed at protecting the confidences of former clients and seeks to prevent conflicts of interest wherein a lawyer may use the confidences of a former client to the detriment of that client in service of another client. SCR ch. 20 Preamble: A Lawyer's Responsibilities [8]. The Preamble demonstrates that the purpose of the rules is not to provide remedies outside the realm of professional discipline. Id., Scope [20],

¶ 174. As the Preamble states, the rules set out in ch. 20 "define proper conduct for purposes of professional discipline." Id., Scope [14], "Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process." Id., Scope [19]. However, even the "violation of a rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation." Id., Scope [20]. Furthermore, "[t]he fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist *478in a collateral proceeding or transaction has standing to seek enforcement of the rule." Id. (emphasis added).

¶ 175. Here, Bishop's Grove asserts that it has standing to enforce its interpretation of SCR 20:1.9 against Attorney Andringa. Bishop's Grove's attempted enforcement of SCR 20:1.9 is contrary to the purpose of SCR ch. 20. SCR ch. 20 is intended to protect clients and former clients and to assist lawyers in proper conduct. It does not provide a legally protectable interest for those who are not and have never been clients. Id.

¶ 176. The lead opinion eliminates one part of Wisconsin's test for standing by not requiring Bishop's Grove to prove that it has a legally protectable interest in confidential communications of Foster and The Foster Group that do involve Bishop's Grove, thereby forming a basis for disqualifying Attorney Andringa, and instead, construes SCR ch. 20 to provide the legal basis for such an interest.15 The Preamble to SCR ch. 20 specifically states it does not provide the legal basis for standing to assert the interest Bishop's Grove alleges.

¶ 177. As we explained in Waste Management, in order to have legal protection for the interest asserted, the petitioner must show that it falls within the class of persons the statute or regulation was enacted to protect and that its claimed injury is of a type proscribed by that statute or regulation. Waste Mgmt., 144 Wis. 2d at 508-09. Bishop's Grove has made no showing that it has, or has ever had, an attorney-client relationship with the Cramer law firm. Therefore, Bishop's Grove is not within the class of persons that SCR 20:1.9 was meant to protect and the injury it claims is not of the type of injury described in SCR 20:1.9.

*479¶ 178. New cases have directly addressed standing to utilize rules or legal principles governing lawyers' relationships with their clients. However, we squarely addressed this question in Forecki v. Kohlberg, 237 Wis. 67, 295 N.W. 7 (1940), reh'g denied, 237 Wis. 67, 296 N.W. 619 (1941). In Forecki, Forecki and Zaleski commenced an action to recover damages for personal injuries they sustained in a collision between the Kohlberg and Zaleski automobiles. Id. at 69. Both plaintiffs were of the opinion that Kohlberg was the sole cause of the collision. Id. at 73-74. Therefore, Forecki did not sue Zaleski, who was the driver of the car in which Forecki was a passenger. Id. at 70, 73-74. We saw no problem with Forecki's decision not to sue Zaleski.16 Id. at 75.

¶ 179. The defendants asserted error occurred when the trial court permitted two lawyers who were affiliated with one another to represent all plaintiffs, alleging that the plaintiffs were potentially adverse and that by permitting the representation that occurred, the defendants were disadvantaged. Id. at 73. It was argued that the defendants did not have standing to raise the contention that Forecki and Zaleski had adverse interests and were represented by lawyers who were affiliated, a proposition with which we agreed. "[W]e think it clear that defendants have no right to object on the ground that Attorneys Hess and Wickham represented adverse interests. . . . 'Only a party who sustains a relation of client to an attorney who undertakes to represent conflicting interests may be entitled to object to such representation.'" Id. at 75 (citation omitted).

*480¶ 180. The Preamble to SCR ch. 20 is consistent with the conclusion in Forecki that it is the client or former client who has a legally protectable interest in the principles attendant to the attorney-client relationship, not a third party who attempts to gain an advantage from the attorney-client relationship of another. SCR ch. 20 Preamble, Scope [20]. Accordingly, I conclude that Bishop's Grove has no legally protectable interest in the Cramer law firm's representation of Foster or The Foster Group grounded in the Supreme Court Rules or the common law that protects the confidential nature of attorney-client communications, even if one were to assume that Susan and Mark's claims cause them to question the reasonableness of The Foster Group's management of Bishop's Grove.

¶ 181. Furthermore, Bishop's Grove has no legally protectable interest in Foster's general knowledge of condominium documents or condominium management. Foster's interpretation of condominium documents that do not relate to Bishop's Grove has nothing to do with conferring standing on Bishop's Grove, and Foster's interpretation of Bishop's Grove's condominium documents and management agreement will become readily apparent to any attorney who represents Susan and Mark during the civil discovery process that is applicable to this case. Therefore, because Bishop's Grove has identified no legally protectable interest of Bishop's Grove, Bishop's Grove does not have standing to object to Attorney Andringa's representation of Susan and Mark in this action based on the attorney-client relationship between Attorney Plaushines of the Cramer law firm and Foster or The Foster Group.

¶ 182. However, it does not necessarily follow from this conclusion that Bishop's Grove has no legally protectable interest in preserving the confidential na*481ture of its own proprietary information, if such is at issue here. I have interpreted Bishop's Grove's disqualification motion's allegation, "The Cramer firm could have obtained facts, information or knowledge to use against Foster in this case regarding knowledge of condominium documents, their interpretation and continuing duties under property management," as an allegation that the Cramer law firm knows that Foster has a general understanding of condominiums and their management because they have represented Foster and The Foster Group in the development of other condominiums. However, if Bishop's Grove actually is asserting that the Cramer law firm has some knowledge of proprietary and confidential information of Bishop's Grove, the specifics of any such allegation do not appear in the affidavits that form the record for this appeal and would require an evidentiary hearing.

III. CONCLUSION

¶ 183. I do not join the lead opinion for three reasons: (1) it creates and then applies a new test for standing that does not require Bishop's Grove to make a showing that it has a legally protectable interest in the Cramer law firm’s attorney-client relationship with a potential witness; (2) it employs ch. 20 of the Supreme Court Rules as a legal basis upon which to confer standing to Bishop's Grove to disqualify plaintiffs' attorney; and (3) whether defendants have standing to challenge plaintiffs' choice of attorney based on a communication of Bishop's Grove's confidential information cannot be decided conclusively on the record before us. Accordingly, I would remand to the circuit court to hold an evidentiary hearing in order to permit Bishop's Grove *482to demonstrate whether Wayne Foster improperly transmitted Bishop's Grove's confidential information to plaintiffs' attorney.

¶ 184. I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this concurrence.

Lead op., ¶¶ 5-8.

Id, ¶ 94.

State Farm is Bishop's Grove's insurer.

Id., ¶ 8.

Id., ¶ 11.

The lead opinion concludes that "a non-client party has standing to move for disqualification of opposing counsel, when the prior representation is so connected with the current litigation that the prior representation is likely to affect the just and lawful determination of the non-client party's position." Id., ¶ 71.

After discarding Wisconsin's long-term standing analysis without acknowledging that it is changing the test for standing, the lead opinion then accords Bishop's Grove's standing. The lead opinion does so on the ground that the attorney's representation may be a breach of the former client's right to confidentiality inasmuch as the defendant has shown that the attorney's "prior representation is so connected with the current litigation that the prior representation is likely to affect the just and lawful determination of the non-client party's position." Id., ¶ 7. As I explain below, this analysis omits the requirement that the petitioner prove a legally protected interest that is personal to the petitioner, which is one part of the two-part test for standing. Fox v. DHSS, 112 Wis. 2d 514, 529, 334 N.W.2d 532 (1983).

The lead opinion relates, "The Foster Group's and Wayne Foster's conduct as manager connects the current litigation with counsel's prior representation of Wayne Foster and the Foster Group." Lead op., ¶ 75. However, there is no statement of undisputed fact in any affidavit that supports the conclusion that the Cramer law firm's past representation of Foster and The Foster Group is connected with the current litigation. To *468the contrary, all affiants who commented on whether there was a connection between past representation of Foster or The Foster Group and Bishop's Grove did not aver that the Cramer law firm's representation of Foster and The Foster Group had anything to do with Bishop's Grove.

The same two-part test for standing employed herein has been repeatedly recognized by Wisconsin courts. See Metro. Builders Ass'n of Greater Milwaukee v. Vill. of Germantown, 2005 WI App 103, ¶ 13, 282 Wis. 2d 458, 698 N.W.2d 301 (noting that the Wisconsin standing analysis has two parts, "first, whether the challenged action caused direct injury to the petitioner's interest and second, whether the interest affected was one recognized by law"); Eller Media, Inc. v. Div. of Hearings & Appeals, 2001 WI App 269, ¶ 7, 249 Wis. 2d 198, 637 N.W.2d 96 (recognizing and applying the above two-part test for standing); MCI Telecomms. Corp. v. Public Serv. Comm'n of Wis., 164 Wis. 2d 489, 494-95, 476 N.W.2d 575 (Ct. App. 1991) (applying the two-part standing test and concluding that MCI did not prove a legally protectable interest); Town of *469Delavan v. City of Delavan, 160 Wis. 2d 403, 410-11, 466 N.W.2d 227 (Ct. App. 1991) (recognizing Wisconsin's two-part test for standing); Mendonca v. DNR, 126 Wis. 2d 207, 209, 376 N.W.2d 73 (Ct. App. 1985) (employing the same two-part test for standing set out in this concurrence).

We concluded that Mueller lost his potential for standing when he moved out of Fitchburg; therefore, we did not analyze *471the standing question as to him. City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 232, 332 N.W.2d 782 (1983).

Lead op., ¶ 40.

E.g., id., ¶¶ 32, 45.

Mut. Serv. Cas. Ins. Co. v. Koenigs, 110 Wis. 2d 522, 527, 329 N.W.2d 157 (1983) (construing standing to appeal based on an alleged interest that was legally protected under contract); Sandroni v. Waukesha Cnty. Bd. of Supervisors, 173 Wis. 2d 183, 189, 496 N.W.2d 164 (Ct. App. 1992) (concluding that a subcontractor has no legally protectable interest in actually performing the work for the prime contractor if the prime contractor is awarded the contract; therefore, the subcontractor has no injury and no standing to challenge the award of the contract).

Bishop's Grove's allegations in its motion do not specify that this knowledge is specific to some unique feature of Bishop's Grove's condominium documents or management agreement. Therefore, I assume herein that it is a general level of knowledge.

There was no evidentiary hearing on the issue of standing. The record relevant to Bishop's Grove's motion to disqualify Attorney Andringa consists of the affidavits of Wayne Foster, Attorney Andringa, Attorney Plaushines, and Attorney Schellinger (defendants' counsel).

Lead op., ¶¶ 5, 11.

Bishop's Grove similarly implies that it is disadvantaged because Susan and Mark did not sue Foster or The Foster Group as the managers of Bishop's Grove. However, Bishop's Grove cites no statute or other law requiring plaintiffs to sue Foster or The Foster Group, and this writer has found none.