¶ 100. {dissenting). I agree with the legal principle advanced today by the majority opinion: "[I]t is an erroneous exercise of discretion for a circuit court to enter a sanction of dismissal with prejudice, imputing the attorney's conduct to the client, where the client is blameless." Majority op., ¶ 60.
¶ 101. I disagree, however, with the application of the legal principle in the present case, and I therefore dissent.
¶ 102. The circuit court did not apply this legal principle but cited to and applied the majority opinion in the Johnson case, which allowed the circuit court to impose sanctions on a blameless client. The circuit court therefore exercised its discretion upon an error of law. "If a judge bases the exercise of his discretion upon an error of law, his conduct is beyond the limits of discretion."1 The majority insists that, while not required by Johnson, the circuit court nonetheless examined Industrial's blameworthiness before imposing the sanction. I disagree. Nevertheless I will discuss this case as the majority does, as if the circuit court applied the legal principle advanced by the majority opinion.
*123¶ 103. Industrial was blameless.2 The record makes this fact clear and the subsequent public reprimand of Industrial's counsel reinforces this fact.3 The court-appointed referee saw Industrial as free of blame. The circuit court and the majority opinion have transformed the client as a victim into the client as a perpetrator.
¶ 104. Evidence of the circuit court's erroneous exercise of discretion in dismissing this case with prejudice permeates the record. I describe separately six aspects in which the circuit court erred in dismissing the cases. The following six errors are, however, interrelated:
(I) The circuit court did not exercise its discretion by examining the relevant facts, by applying a proper standard of law, and by using a demonstrated rational process;
(II) Industrial is a blameless client whom the circuit court and the majority opinion have transformed into a perpetrator;
(III) Viewing the client's (Industrial's) conduct as blameworthy distorts the traditional lawyer-client relationship;
(IV) The circuit court erroneously exercised its discretion in refusing to give Industrial's new counsel the opportunity to be heard when the circuit court was still undecided about the sanctions to be imposed;
*124(V) Imposing a requirement of a "hearing on viability" as a sanction for discovery violations is imposing a requirement unknown to the law, the parties, the circuit court, and the majority opinion; and
(VI) Because Industrial could not comply with the circuit court's mandate that Industrial pay the attorney's fees, re-file the case, and succeed at a hearing on viability without jeopardizing its appeal rights, the circuit court's mandate was an erroneous exercise of discretion.
¶ 105. I will address each of these incidents of the erroneous exercise of discretion in turn, after first providing a timeframe of the relevant events.
• On June 19, 2003, Industrial's counsel commenced the present action.
• In July and August 2003, several defendants moved to dismiss, alleging lack of personal jurisdiction. Argument was schedule for October 27, 2003.
• Industrial's counsel failed to timely serve his client's response, causing the October 27, 2003 hearing to be continued to November 17, 2003. Industrial's president, Keith Dippel, attended the October 27, 2003 hearing with counsel.
• At the November 17, 2003 hearing, Industrial's counsel was successful in defeating the defendant's jurisdictional motion. The circuit court awarded attorney's fees to the defendants for Industrial's untimely response to the motion, and Industrial's counsel offered to pay them personally. Keith Dippel attended the November 17, 2003 hearing with counsel.
• At the November 17, 2003 hearing, the circuit court also entered a scheduling order requiring Industrial *125and the defendants to produce witness lists by March 30, 2004 and July 2, 2004, respectively. The circuit court ordered discovery closed by September 1, 2004 and dispositive motions filed by September 15, 2004.
• In the interim, the parties exchanged discovery requests. On August 28, 2003, the Clark defendants served Industrial with document requests, interrogatories, and requests for admission. On September 19, 2003, the Marquardt defendants served document requests and 26 interrogatories. Industrial responded to these requests on September 30, 2003 and October 22, 2003, respectively, but objected to some of the requests and interrogatories.
• On January 15, 2004, the Marquardt defendants served "replacement interrogatories" in lieu of the 268 interrogatories previously served. They also served 93 new requests for admission.
• On January 23, 2004, the defendants filed a motion to compel discovery.
• On February 19, 2004, Industrial's counsel responded by filing a motion for a protective order. Industrial's counsel and Keith Dippel also prepared and served supplemental responses to some of the interrogatories and requests for admission that were the subject of the motion to compel. Industrial's counsel served them prior to the February 23, 2004 hearing on the motion for a protective order.
• During the February 23, 2004 hearing, a discussion was had concerning the inadequacy of Industrial's responses. Attorney's' fees were awarded, and harsher sanctions were threatened. The circuit court ordered Industrial to comply with the remaining discovery requests by March 1, 2004. Keith Dippel was not present at this hearing. Industrial's *126counsel did not inform Industrial of the court orders entered on February 23, 2004.
• On March 22, 2004, Industrial answered the Mar-quardt defendants' requests for admissions.
• Between April 14 and May 17, 2004, the defendants filed motions to dismiss the case, to impose sanctions, and for summary judgment, based on Industrial's continued failure to comply with discovery requests and orders. Industrial's counsel did not respond to these motions.
• A hearing was held on June 14, 2004 on the defendants' motions. Industrial's counsel did not inform Industrial of this hearing. Industrial's counsel confessed in open court his personal problems, accepted blame for the failure to comply with discovery, and asked the circuit court to allow time for Industrial to retain new counsel. Industrial's counsel, however, deceived the circuit court about Industrial's knowledge of the hearing that day, of the discovery orders, and of counsel's failure to comply with discovery orders. The circuit court indicated it was contemplating sanctions.
• On June 15, 2004, Industrial's counsel advised Industrial he was resigning as counsel, without explaining to Industrial the events of the prior day. Industrial immediately hired new counsel, who, upon learning of the June 14, 2004 hearing, filed on June 24, 2004 an affidavit and requested a status conference to address the pending motions and possible sanctions.
• Industrial's original counsel delayed turning over the files to new counsel.
• On June 29, the circuit court denied the request for a status conference.
• On August 10, 2004, without hearing argument or evidence from Industrial's new counsel, the circuit *127court ruled that it would dismiss Industrial's case with prejudice unless Industrial paid the defendants' attorney's fees and refiled the case within 60 days, and thereafter satisfied the circuit court at a "hearing on viability."
• On October 21, 2004, the circuit court finally heard arguments from Industrial's new counsel in the context of a motion for reconsideration; the motion for reconsideration was promptly denied at the end of the hearing.
• On November 11, 2004, Industrial's new counsel petitioned for leave to appeal the circuit court's August 10 decision, which the court of appeals denied.
• On December 9, 2004, Industrial's complaint was dismissed with prejudice.
¶ 106. As this timeline demonstrates and the following discussion illustrates, Industrial is a victim of its lawyer's misrepresentations.
HH
¶ 107. The circuit court did not exercise its discretion by examining the relevant facts, by applying a proper standard of law, and by using a demonstrated rational process, as the majority opinion requires. Majority op., ¶ 40.
¶ 108. The majority opinion cobbles together miscellaneous statements in the record and fashions them into a story of noncompliance in the discovery process amounting to the circuit court's finding egregious attorney conduct. But do not be fooled. This is the majority opinion's story, not the facts and reasoning of the circuit court.
*128¶ 109. The circuit court ordered dismissal in a written decision on August 10, 2004. In its written decision, the circuit court did not specify the basis for this ruling and instead referred to its findings in a June 14, 2004 hearing: "The Court at the previous hearing has established findings sufficient for a sanction. The Court will not repeat the determinations made at that time."4
¶ 110. It is not clear, however, from the transcript of the June 14, 2004 hearing what "findings" the circuit court made, what legal principle it relied on, and what its decision-making process was. There is no clearly articulated explanation as to why this particular sanction was warranted. The circuit court was not required to employ any magic language, such as the word 'egregious' or 'extreme' (although if a circuit court expressly articulates the proper standard of law it is more likely to reach a correct result and appellate review of the exercise of discretion is easier).
¶ 111. Moreover, the circuit court's language is open to interpretation. For instance, the majority opinion insists that the circuit court was aghast at the egregiousness of the conduct. Yet, it is just as plausible that the circuit court was surprised because it was the first time in the circuit court's experience that a lawyer accepted full responsibility and blame for the "litany of failures" in discovery, and because the lawyer said he intended to wind down his litigation practice and seek professional help. The circuit court (and indeed the defendants' counsel) were at a loss at how to proceed under these circumstances.5
*129¶ 112. In sum, it was an erroneous exercise of discretion for the circuit court to fail to state clearly its findings and reasoning on the record.
r — H l-H
¶ 113. According to the majority opinion, a circuit court imputes an attorney's egregious misconduct to a client after considering "the client's failure to act in a reasonable and prudent manner, and the client's knowledge of or complicity in that conduct." Majority op.,
*130¶ 62. A circuit court considers whether "the client has acted as a reasonable and prudent person in engaging a lawyer of good reputation, has relied upon him to protect his rights, and has made a reasonable inquiry concerning the proceedings."6 The circuit court — and the majority opinion — did not properly apply this standard.
¶ 114. It is clear here that the faults were with the attorney, not the client. Industrial's attorney admitted personal blame for all failures to provide discovery. Repeatedly, the attorney explained how the blame rested solely with him: "Because as I say, my client has not been the source of the problem. It has been my, just my inability to focus on my practice like I should have." The attorney further described how "[m]y client wants to prosecute the case." The Office of Lawyer Regulation (OLR) and a referee in the discipline case against Industrial's attorney have accepted the attorney's ownership of responsibility, agreeing that the attorney is solely responsible for the discovery violations, and the attorney has since been publicly reprimanded.7
¶ 115. At the June 14, 2004 hearing, the circuit court noted only two possible faults of the client. Neither was sufficient to find Industrial's conduct unreasonable or imprudent.
¶ 116. First, the circuit court was concerned because Industrial's president, Keith Dippel, had not yet attended a deposition and had not rescheduled a previously cancelled deposition. The record makes clear that Dippel was not at fault. Industrial's counsel cancelled the deposition and counsel accepted responsibility for *131the other scheduling difficulties, stating, "[I]t was my failure." He explained further: "I wasn't in a position to prepare the client. Again, it was my fault." Later in the hearing, counsel once again assumed blame: "The responsibility for that second deposition not occurring was mine. I don't think Mr. Dippel would have been resistive to it." Industrial had no role in the discovery violations.
¶ 117. Second, the circuit court was concerned because Mr. Dippel had failed to attend the June 14, 2004 hearing. Counsel explained that the absence was due to out-of-town business obligations. This explanation was a lie; the truth was that counsel had not told Dippel of the hearing. In any event, there had been no court order or request for Dippel's personal attendance prior to this hearing.
¶ 118. The circuit court erred when it ruled that Industrial was alerted to counsel's ineptitude prior to June 15. The basis of the circuit court's error is clear and on the record. Dippel attended the hearing on November 17, 2003, but that hearing was not sufficient to serve notice. At that hearing, the circuit court ordered payment of attorney's fees as a sanction for Industrial's counsel's failure to respond to a motion. Industrial's counsel accepted blame, claiming it was a "mailing snafu," and offered to pay the sanction personally.
¶ 119. This incident did not provide notice to Industrial that its lawyer was engaging in egregious conduct. At best, Industrial learned that the attorney had blundered once, quickly accepted blame, and promised not to let it happen again. Industrial reasonably could have viewed counsel's conduct as a minor glitch that was going to be repaired.
*132¶ 120. The circuit court mistakenly thought Dippel was at a hearing on February 23, 2004, wherein the circuit court threatened more severe sanctions if Industrial's attorney failed to comply with discovery requests. In actuality, Dippel was not present at that hearing, nor was he privy to the circuit court's admonishments. Industrial thus could not have been "on notice" because of this hearing.
¶ 121. The record demonstrates that Industrial acted in a responsible and prudent manner, both in engaging and in relying on counsel. Industrial reasonably relied on the lawyer to protect its rights and made reasonable inquiry concerning the proceedings.
¶ 122. Without these reasons to find Industrial knowledgeable of or complicitous with its attorney's conduct, the majority opinion asserts that the circuit court relied on the Dippel affidavit, dated June 24, 2004, and filed by new counsel on that date, requesting an opportunity to be heard before the circuit court on possible sanctions. Majority op., ¶ 63 n.12.
¶ 123. The affidavit explains that the present case was the first lawsuit Dippel was involved with and that he is not knowledgeable about legal proceedings; that he discussed the various proceedings with counsel numerous times; that he pressed the attorney to meet the scheduling timetable; that he sent the attorney responses and documents in response to discovery requests; that during February, March, and April he made repeated phone calls, sent e-mails to the attorney, and visited the attorney's office regarding the status of the case; that he received reassurances from the attorney that matters were proceeding; and that the attorney did not advise Industrial until June 15 that he could no longer represent Industrial because of personal issues.
*133¶ 124. The affidavit was filed to show that the attorney had blatantly lied to the circuit court on June 14 when he claimed that he had advised Industrial of his personal problems and the problems with discovery. The affidavit also demonstrated that Industrial was a reasonable and prudent client following the progress of its case and keeping fines of communication open with counsel.
¶ 125. The circuit court's only reference to the affidavit in its August 10 decision states as follows: "The subsequent contacts [after November 17] Mr. Dippel had with [counsel] should have raised suspicion as to his abilities to prosecute the case. The affidavit contains many contacts and questions of [counsel] by Mr. Dippel. Merely because he relied on [counsel's] assurance that things were being taken care of does not exonerate Mr. Dippel from the consequences and sanctions."8
¶ 126. Under these circumstances the circuit court should not have ruled on the sanctions without a hearing. As the majority opinion acknowledges, majority op., ¶ 63 n.12, "on the motion for sanctions, if there are disputed facts or disputed inferences from the facts an evidentiary hearing, rather than simply oral argument based on briefs, affidavits and depositions, is necessary to resolve these disputes. See State v. Jason R.N., 201 Wis. 2d 646, 648, 549 N.W.2d 752, 753 (Ct. App. 1996)."9
¶ 127. In the present case there are disputed facts. The statements of Industrial's counsel to the circuit court about Industrial's knowledge of the proceedings differ from Mr. Dippel's affidavit stating *134Industrial's knowledge; the circuit court expressed concern about this dispute. Furthermore, more than one reasonable inference can be drawn from the affidavit about whether Industrial was prudent and therefore as a matter of law was blameworthy. The circuit court erroneously exercised its discretion in refusing to give Industrial's new counsel an opportunity to present Industrial's position. See majority op., ¶ 63 n.12.
¶ 128. Industrial finally got a hearing, but was not given the opportunity to produce evidence. At the October reconsideration hearing, Industrial's new counsel advised the circuit court of the disputed facts and inferences evidenced in the affidavit. If the attorney's lying to the client and the client's repeated efforts to keep abreast of the case would not change the circuit court's mind, what facts are left to show Industrial was blameless?
¶ 129. In sum, the circuit court and majority opinion are wrong to impute the attorney's conduct to Industrial because (1) the lawyer continually lied to or kept information from Industrial; (2) Industrial did not know or have reason to know of any egregious conduct until the attorney advised Industrial after the June 14 hearing to retain new counsel; (3) Industrial's reliance on its attorney under the circumstances in the case was justified; and (4) Industrial acted promptly to address the problem when it became aware of the problem. Industrial is the victim, not the perpetrator.
HH HH l — I
¶ 130. Viewing Industrial's conduct as blameworthy distorts the traditional lawyer-client relationship.
¶ 131. Industrial was simply trusting its lawyer to take care of its case, as clients generally do. "[T]o impose the punishment for the lawyer's failure to *135prosecute on the plaintiff who . . . was simply trusting his lawyer to take care of his case as clients generally do" is to ignore "the practicalities and realities of the lawyer-client relationship."10
¶ 132. The traditional lawyer-client relationship assumes that while the client sets the goals for representation, the lawyer manages the case. The Code of Professional Responsibility recognizes that clients often lack the training or knowledge to understand the technical aspects of their cases: "In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that might injure or coerce others. On the other hand, a lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail." SCR 20:1.4, Comment.11 The Code also states that "[i]n questions of means, the lawyer should assume responsibility for technical and legal tactical issues . . .." SCR 20:1.2, Comment.12
¶ 133. In short, "[a] lawyer's work is sometimes complex and technical, often is performed in the client's absence, and often cannot properly be evaluated simply by observing the results."13
*136¶ 134. Discovery is one of the many complex aspects of a successful litigation. It involves complying with local rules that are technical and formalistic: limited requests, special forms, certain deadlines. In involves exactly the "technical legal and strategic considerations difficult for a client to assess."14 These technical aspects of a case ordinarily fall within the lawyer's, not the client's, expertise.
¶ 135. Industrial did what is traditionally required of a client; it kept asking questions and got what seemed like reasonable explanations. "[A] layperson ordinarily cannot be expected to supervise his or her attorney through every pretrial phase of litigation. A litigant may make appropriate inquiry and be victimized by counsel."15 What would the majority opinion have had Industrial do to prevent being deceived by his attorney? Hire another attorney to audit the first one?
¶ 136. With its opinion today, the majority now expects the client to understand and assess the lawyer's ability to conduct discovery every step of the way. The circuit court and the majority opinion demand that a client engage in an unreasonably high level of supervision of an attorney and that a client respond rapidly should any question emerge about counsel's conduct of discovery. To expect clients to keep such a close guard over their attorneys and any problems that may arise and to hire new counsel immediately upon the development of a problem is unrealistic and unfair.
¶ 137. As a result of the majority opinion, clients are now obligated to monitor due dates for discovery *137and examine whether the materials provided by counsel are responsive. The client can no longer just generally keep abreast of the case. The client must make detailed inquiries and check with court records, not take the lawyer's word. Unless the client so acts, the client risks being deemed blameworthy, having its case dismissed with prejudice, and being ordered to pay legal fees to opposing counsel.
¶ 138. In sum, I conclude that imputing the conduct of Industrial's counsel to Industrial under the circumstances of the case at bar for the purposes of the sanction of dismissal with prejudice is an erroneous exercise of discretion as a distortion of the lawyer-client relationship.
IV
¶ 139. The circuit court erroneously exercised its discretion in refusing to grant Industrial a hearing with its new counsel while the circuit court was still undecided about the sanction for the previous counsel's misconduct.
¶ 140. The circuit court had plenty of opportunities and time to hear from Industrial and its new counsel prior to entering the dismissal without prejudice. At the start of the June 14, 2004 hearing, Industrial's counsel apologized for his failures and, at more than one point, asked the court for time to allow Industrial to retain new counsel to respond to the pending motions and to postpone any decision until new counsel could participate on behalf of Industrial.
¶ 141. The circuit court denied Industrial's counsel's requests, announcing that "it's not going to take me long" to make a ruling on the sanctions.
*138¶ 142. Nevertheless, nearly two months lapsed before the circuit court issued its ruling of dismissal on August 10, 2004.
¶ 143. In the interim, Industrial had promptly hired new counsel within a week of the June 14, 2004 hearing. New counsel acted on June 24, 2004, filing Keith Dippel's affidavit and requesting a status conference to discuss the progress of the case, including the sanctions. The circuit court denied that request on June 29, 2004. The June 29, 2004 order denying new counsel's request for a status conference states: "The Court will not set a status conference until it has decided the motions to dismiss." The circuit court did not render its decision on the sanctions until nearly a month and a half later.
¶ 144. As a result of the circuit court's refusal to hear from new counsel, Industrial did not have the same opportunity as the numerous counsel for the numerous defendants did to recommend sanctions or to argue about the course the circuit court should take with regard to the disputed facts in issue and disputed inferences from the facts in issue {see Part II, supra).
¶ 145. The circuit court should not have ruled on the sanctions without a hearing, as the majority opinion acknowledges. Majority op., ¶ 63 n.12.
¶ 146. Industrial's new counsel was given the opportunity to explain the Dippel affidavit and Industrial's position only on October 21, 2004 when the circuit court heard arguments on Industrial's motion for reconsideration. By then the circuit court had already ruled on the matter several times and might not be inclined to admit error or change its mind. It comes as no surprise, then, that the circuit court dismissed the importance of any disputes of facts by saying whatever the facts, it would not have changed its mind.
*139¶ 147. In sum, the circuit court put itself in the situation of having heard from several counsel opposing Industrial and from Industrial's counsel who admitted that the misconduct was all his fault (and lied to the circuit court that he had advised his client of the problems and to get a new attorney) but refused to hear from Industrial. The circuit court shut itself off from a valuable source of information necessary to tailor an appropriate sanction. The failure to give Industrial an opportunity to present evidence and be heard on how to resolve the dispute was not fair process and was an erroneous exercise of discretion.
V
¶ 148. Requiring a "hearing on viability" as a sanction for discovery violations is imposing a requirement unknown to the law, the parties, and the majority opinion. The circuit court ordered Industrial to demonstrate "viability" immediately after re-filing and before any further scheduling of the case. This creative sanction cannot be satisfied because no one knows what it means.
¶ 149. The circuit court failed to describe the objective and nature of a "hearing on viability." Amazingly, the majority opinion is not troubled by the circuit court's failure to establish even the vaguest structure for this "hearing on viability."
¶ 150. The circuit court failed to articulate a clear legal standard governing the "hearing on viability." When first formulating the idea of a viability hearing at the June 14, 2004 hearing, the circuit court described it as "instead of holding a merit hearing, the issue of validity, where [Industrial] is to come up with the opportunity to demonstrate that this is not a frivolous *140case." In its August 10, 2004 decision, the circuit court ordered "a hearing to demonstrate the viability of the allegations in the complaint from a factual and legal basis."
¶ 151. The majority opinion magically distills from these vague statements a "well defined" standard. Majority op., ¶ 77. Even more remarkably, the majority opinion announces that this viability hearing is at the same time a hearing for frivolousness under Wis. Stat. § 802.05 and not such a hearing. I am sympathetic with the majority opinion: It needs to locate a clear legal standard for this viability hearing but does not want to get into the frivolousness thicket. Majority op., ¶ 78.
¶ 152. So what is this "hearing on viability"? It is not a hearing on a motion to dismiss for failure to state a claim. The complaint does state a claim. Is it the circuit court's order to make the complaint more definite and certain? The defendants could have made such a motion but did not. Industrial probably cannot make the complaint more definite and certain because its delinquent counsel failed to engage in discovery. The majority opinion attempts to characterize this hearing as a preventative measure "to mitigate future harm" but does not explain why the circuit court should attempt to mitigate future harm through such an ill-defined device. The "hearing on viability" seems to be just a different way of punishing Industrial for its counsel's misconduct.
¶ 153. The circuit court has discretion in ordering sanctions for a party's misconduct and may tailor the sanction to the needs of a particular situation. This discretion is not, however, unfettered. Wisconsin Stat. §§ 804.12(2)(a) and 805.03 (2003-04) limit the sanctions to those that are "just." An undefined condition *141not governed by any legal principle cannot be a "just" sanction. No one has any clue how to satisfy the condition.
¶ 154. I am at a loss to explain to circuit courts or litigants how to conduct a "hearing on viability." Or to explain to an appellate court how to review a decision in a viability hearing. The majority opinion certainly does not provide an answer.
¶ 155. In sum, the circuit court erroneously exercised its discretion in conditioning a refiling by requiring a "hearing on viability."
VI
¶ 156. The circuit court's mandate that Industrial pay the attorney's fees, refile the case, and succeed at a hearing on viability was an erroneous exercise of discretion.
¶ 157. The circuit court gave Industrial two options: (1) pay the attorney fees and refile with a hearing on viability; or (2) have the case dismissed with prejudice. Some choice!
¶ 158. The majority opinion narrowly focuses on Industrial's decision not to pay attorney's fees and refile, insisting this omission (which resulted in a dismissal with prejudice) demonstrates that Industrial was not reasonable and prudent and thus was blameworthy. The circuit court placed Industrial in an impossible situation when it entered the dismissal without prejudice with these conditions.
¶ 159. In any event, the majority opinion seems to view the order to pay less than $4,000 as a nuisance payment that Industrial should just pay and go on with the matter. If a larger sum were involved, I suspect that *142the majority opinion would reach a different conclusion. From my perspective, however, the amount should not be the key factor.
¶ 160. If Industrial paid this fee and refiled its complaint, it is not clear what Industrial's rights on appeal might be and whether the circuit court would stay its proceedings pending appeal. Industrial discussed its potential appeal rights at length with the circuit court at the October reconsideration hearing and no one seemed to know how to resolve the appeal issues.
¶ 161. On October 11, 2004, Industrial filed a petition with the court of appeals for leave to appeal the orders dismissing the case without prejudice. On November 11, 2004, the court of appeals held the request in abeyance, reasoning that if Industrial did not refile the case within the 60-day window, a dismissal with prejudice would be entered and that this final judgment could be appealed as a matter of right.
¶ 162. If Industrial wanted to challenge the circuit court's initial sanction and was rightfully concerned about taking its chances on a hearing on viability, whatever that is, it seems to me its safest course was not to pay the attorney fees, not to refile, and not to go into a viability hearing.
¶ 163. In sum, the circuit court erroneously exercised its discretion when it conditioned the dismissal without prejudice on Industrial's meeting the three requirements it established.
‡ ‡
¶ 164. For the reasons set forth, I conclude that the circuit court erroneously exercised its discretion in dismissing the claim with prejudice and denying Indus*143trial its day in court. As a result, Industrial, a blameless client in my view, has lost its opportunity to pursue its claims against the defendants for their allegedly ongoing wrongful conduct. Industrial, the victim, has been transformed into a perpetrator.
¶ 165. The public reprimand of Industrial's counsel demonstrates that Industrial's attorney deceived Industrial, hiding relevant information about the case, his misconduct, and Industrial's blamelessness. Although a public reprimand does not serve as a basis for an attorney's civil liability,16 the public reprimand against the attorney states that the "[ijmposition of this public reprimand is conditioned on [the attorney's] assumption of responsibility for any sanctions imposed against the plaintiffs [Industrial and Dippel] in the underlying litigation as a result of his misconduct."17
¶ 166. I do not know how valuable the attorney's assumption of responsibility for any sanctions imposed on Industrial is. I do not know whether the attorney is judgment-proof, has assets, or has malpractice coverage. I wonder whether a malpractice suit will provide Industrial sufficient relief, especially when the majority opinion has characterized Industrial as a blameworthy participant.
¶ 167. For the reasons set forth, I dissent.
¶ 168. I am authorized to state that Justices DAVID T. PROSSER, JR. and PATIENCE DRAKE ROGGENSACK join this opinion.
State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968), quoted in Kenosha Hosp. & Med. Ctr. v. Garcia, 2004 WI 105, ¶ 15, 274 Wis. 2d 338, 683 N.W.2d 425.
Keith Dippel is the president of Industrial. Both Dippel and Industrial are plaintiffs in this lawsuit, and the same attorney represented both. For purposes of review, my references to Industrial generally include both plaintiffs.
Industrial's counsel was publicly reprimanded by a referee under SCR:22.09 for his conduct in this case. The reprimand number is 2006-OLR-12 and the full text of the reprimand is available at http://www.wicourts.gov/services/public/lawyerreg/ statusreprimands.htm.
Record of June 14, 2004, set forth in Appendix to Brief of Plaintiffs-Appellants-Petitioners at P-App 032-036.
After Industrial's counsel explained his personal problems and accepted full responsibility for the failure to comply with *129discovery requests and orders, the circuit court contemplated how to proceed with the case, musing that:
Okay. Well, certainly from the record here something was wrong. Because I hadn't seen, you know, a lack of response before in any other case; so there was something wrong and didn't know where it was coming from, didn't have enough information, just like everybody else under the circumstances.
So, at this point and certainly from the facts here, it fits into all the major sanction cases as far as that goes. Okay. My reaction is, and usually, you know, you don't have a situation where you do have a situation where you can say, okay, the sanction is this. And, you know, the fault lies here, with the client versus the attorney or with the attorney versus the client. And there are provisions for that under the circumstances.
So, under the circumstances, my question is — I've never had a situation like this. Maybe that's because I've never seen the lack of response in — you stated it's your personal problem and it's your fault. So in other cases where we have a lack of response in certain areas, we grant the sanction.
Under the circumstances, does anybody have any statement they want to make?
The circuit court was seemingly wrestling with how to proceed given the unique circumstances of the case and the attorney's assumption of full responsibility for the discovery violations. Ordinarily sanctions may be called for on violation of a court order, but the circuit court was obviously unsure whether they were appropriate here.
Charolais Breeding Ranches, Ltd. v. Wiegel, 92 Wis. 2d 498, 514, 285 N.W.2d 720 (1979).
See SCR:22.09.
In any event, I do not agree with the circuit court. I think that a client can rely on an attorney's reasonable assurances at least for a reasonable time. See Part III, infra.
See also Garfoot v. Fireman's Fund Ins. Co., 228 Wis. 2d 707, 725 n.8, 599 N.W.2d 411 (1999).
Link v. Wabash R.R. Co., 370 U.S. 626, 643, 646 (1962) (Black, J., dissenting).
See also Restatement (Third) of the Law Governing Lawyers § 20 cmt. (2000) ("Legal representation is to be conducted to advance the client's objectives, but the lawyer typically has knowledge and skill that the client lacks and often makes or implements decisions in the client's absence.").
See also Restatement (Third) of the Law Governing Lawyers § 21 cmt. (2000) ("Such matters often involve technical legal and strategic considerations difficult for a client to assess.").
Restatement (Third) of the Law Governing Lawyers § 16 cmt. (2000).
Restatement (Third) of the Law Governing Lawyers § 21 cmt. (2000).
Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 290, 470 N.W.2d 859 (1991) (Abrahamson, J., concurring).
SCR 20, Preamble (2006).
Wis. Sup. Ct. Office of Lawyer Regulation Public Reprimand No. 2006-OLR-12, at 9.