author: NETTESHEIM, P.J.

text:
    Harold C. Lane, Jr., Plaintiff-Appellant, v. Sharp Packaging Systems, Inc., Paul W. Scarberry and Virginia Scarberry, Defendants, John H. Niebler, Esq. and Niebler, Pyzyk, Klaver & Wagner, LLP, Defendant-Respondent.

    Court of Appeals

      No. 01-0708.

      Submitted on briefs August 24, 2001.

    Decided September 26, 2001.

    2001 WI App 250
    (Also reported in 635 N.W.2d 896.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James O. Huber, Maureen A. McGinnity, and David W. Simon of Foley & Lardner of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Terry E. Johnson and Maria DelPizzo Sanders of Peterson, Johnson & Murray, S.C. of Milwaukee.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review filed.

   NETTESHEIM, P.J.

¶ 1. Harold C. Lane, Jr., brought an action alleging fraud and conspiracy claims against his former employer, Sharp Packaging Systems, Inc., its owners, Paul W. and Virginia Scarberry (the Sharp defendants) and the Scarberrys' personal attorney, John H. Niebler and his firm, Niebler, Pyzyk, Klaver & Wagner, LLP (Niebler). Lane appeals from a trial court order granting Niebler's pretrial motion to dismiss Lane's amended complaint. The court dismissed the complaint without prejudice, ruling that Lane's action was presently precluded by the court of appeals' holding in Badger Cab Co. v. Soule, 171 Wis. 2d 754, 492 N.W.2d 375 (Ct. App. 1992).

¶ 2. The first issue is whether a lawyer can be liable to a third party, nonclient for acts committed within the attorney-client relationship where the attorney does not have direct contact with the third party. We conclude that an attorney can be held liable for actions rendered in the course of representation if those actions are fraudulent. Goerke v. Vojvodich, 67 Wis. 2d 102, 226 N.W.2d 211 (1975); Green Spring Farms v. Kersten, 136 Wis. 2d 304, 401 N.W.2d 816 (1987).

¶ 3. The second issue is whether a lawyer and a client are incapable, as a matter of law, of engaging in a conspiracy pursuant to Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 405 N.W.2d 354 (Ct. App. 1987). We conclude that they are not.

¶ 4. The third issue is whether Badger Cab permits a plaintiff to pursue an action against the defendant and the defendant's attorney where the plaintiff alleges that the defendant engaged in fraud and a conspiracy giving rise to the litigation. We hold that Badger Cab does not bar an action against the defendant's attorney under such circumstances.

¶ 5. We reverse the trial court's order dismissing Lane's complaint against Niebler. We remand for further proceedings.

Facts and Trial Court Proceedings

¶ 6. Since the issue on appeal is whether the trial court properly granted Niebler's motion to dismiss Lane's amended complaint, we are required to limit our review to the facts alleged in the complaint and we must assume those facts to be true. See Town of Eagle v. Christensen, 191 Wis. 2d 301, 311-12, 529 N.W.2d 245 (Ct. App. 1995). Whether those alleged facts can withstand the rigors of a trial has yet to be determined.

¶ 7. Lane's alleged facts are as follows. Sharp is a Subchapter S corporation engaged in the business of manufacturing and distributing preopened bags. The Scarberrys are the sole shareholders of Sharp and both are members of Sharp's board of directors.

¶ 8. Lane entered into an employment agreement with Sharp in December 1992. The agreement designated Lane as president and chief operating officer reporting to Paul Scarberry, who was chairman and chief executive officer. Subsequently, in 1995, Lane entered into an Employment Agreement and Stock Option Agreement with Sharp and the Scarberrys. The agreements provided Lane with a 25% interest in the value of the company. Lane's interest was structured as a stock option with "stock appreciation rights." The Stock Option Agreement provided that if Lane were terminated prior to the exercise of his option, he would have the choice of exercising his option or receiving his 25% share of the company as stock appreciation rights. More specifically, the agreement provided that if Lane's employment were terminated, Sharp would be required to redeem his unexercised stock option, paying him the fair market value of his 25% interest in the company as determined by an appraisal. The agreement also included antidilution adjustments as well as a "make up" provision to assure Lane would receive his 25% share in the event of the sale or other disposition of substantially all of the company's assets following his termination. Lane was entitled to at least a forty-eight-hour notice of any shareholder meetings and he was to be consulted regarding any action to be taken by the shareholders.

¶ 9. Pursuant to the Employment Agreement, Lane was elected to and remained a member of Sharp's board of directors. He also held the right to veto or discharge any professional providing services to Sharp if that professional was not performing to Lane's satisfaction. In 1995, Lane caused Sharp to replace Niebler as Sharp's corporate counsel and to remove Niebler from Sharp's board of directors. Niebler had represented Sharp at times since 1985 and the Niebler firm acted as Sharp's general counsel. Sharp replaced Niebler's services as corporate counsel with those of Meissner & Tierney.

¶ 10. Lane alleges in his complaint that as a result of the exercise of his contractual right to cause Niebler to be discharged as Sharp's counsel and to have him removed from Sharp's board of directors, Niebler harbored personal resentment, animosity and malice toward him. Lane contends that despite the termination of Niebler's services, Niebler secretly continued to provide services to Sharp without Lane's knowledge, consent or authority from 1995 through 1999.

¶ 11. Lane also alleges that from the outset of his employment with Sharp, Niebler tried to persuade the Scarberrys that there was no enforceable agreement with Lane and that Lane was trying to "steal Sharp from the Scarberrys." Lane contends that commencing in mid-1998, the Scarberrys and Niebler conspired and agreed to have the Scarberrys secretly withdraw funds from Sharp without paying Lane his 25% share. Lane further contends that in July 1998, without advising Lane, Niebler devised and proposed to the Scarberrys a plan for the withdrawal of a substantial portion of Sharp's retained earnings as a shareholder distribution. It is Lane's position that Niebler himself proposed the plan and the Scarberrys accepted and acted upon the plan, with full knowledge that such distribution would violate and impair Lane's rights to his 25% vested interest in Sharp. On February 23,1999, Sharp paid the Scarberrys an approximately $3.8 million shareholder distribution without the unanimous consent of Sharp's board of directors and without notifying Lane or obtaining his consent. The transfer of assets out of the company significantly diminished the value of Lane's 25% interest in Sharp. On March 2, 1999, the Scarber-rys informed Lane that he had been removed from the board of directors effective immediately and that he had been terminated effective May 31, 1999.

¶ 12. Lane filed his original complaint on December 14, 1999, raising the following allegations against Sharp and the Scarberrys: (1) fraudulent transfer, (2) breach of the Employment Agreement, (3) breach of the Stock Option Agreement, (4) civil conspiracy to deprive him of his 25% interest in Sharp, (5) request for an accounting, and (6) request for declaratory and injunc-tive relief. Sharp and the Scarberrys appeared in the action represented by Stafford & Rosenbaum with Niebler listed as co-counsel.

¶ 13. Following discovery, Lane filed an amended complaint impleading Niebler and the Niebler law firm as additional defendants to the allegations of fraudulent transfer and conspiracy and adding a claim of tortious interference of contract.

¶ 14. Niebler filed a motion to dismiss Lane's claims pursuant to Wis. Stat. § 802.06(2)(a)6 (1999-2000), arguing that as a matter of law, a party may not state a claim against another party's attorney and that Lane's claim was barred by our holding in Badger Cab. Following a hearing on February 16, 2001, the trial court granted Niebler's motion to dismiss, but ordered that the dismissal be without prejudice. Lane appeals.

Discussion

¶ 15. We review a trial court's decision to grant or deny a motion to dismiss for failure to state a claim de novo. Town of Eagle, 191 Wis. 2d at 311-12. The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint. Id. at 311. As we have noted, we assume that the facts alleged in the complaint are true and liberally construe the pleadings, dismissing only if it is quite clear that under no conditions can the plaintiff recover. Id.

1. Attorney Liability

¶ 16. The first issue is whether an attorney may be liable to a third party, nonclient for fraudulent acts committed within the attorney-client relationship. While we conclude, and the parties agree, that the answer is "yes," Niebler argues that he cannot be held liable under the circumstances presented in this case. We disagree.

¶ 17. In Goerke, 67 Wis. 2d at 105, the supreme court set forth the general statement adhered to in Wisconsin regarding the liability of attorneys to third parties:

While an attorney is not liable to a third person for acts performed in good faith, and mere negligence on the part of an attorney is insufficient to give a right of action to a third party injured thereby, an attorney is personally liable to a third party who sustains injury in consequence of his wrongful act or improper exercise of authority where the attorney has been guilty of fraud or collusion, or of a malicious or tortious act. (Emphasis added; citation omitted.)

¶ 18. This standard was subsequently confirmed in Green Spring Farms, 136 Wis. 2d at 321-24. There the court observed, " Goerke explicitly stated that an exception to the general rule of attorney immunity from liability to nonclients exists when an attorney's conduct is fraudulent with respect to nonclients." Green Spring Farms, 136 Wis. 2d at 321-22 (footnote omitted).

¶ 19. Niebler argues that the rule set forth in Goerke does not apply in this case because, unlike the attorneys in Goerke and Green Spring Farms, he did not have any direct contact with Lane during the transactions constituting the alleged fraud or conspiracy. Niebler cites to no authority, nor are we aware of any, that requires direct contact between the third party and the attorney accused of fraud or collusion. Although the facts of Goerke and Green Spring Farms differ from the facts of this case, the general statement as to the liability of attorneys to third parties remains constant. Here, Lane alleges that Niebler acted "maliciously" and "[w]ith actual intent to . . . defraud Lane" and that Niebler "exceeded the bounds of his professional obligation to Sharp and the Scarberrys and became an active participant in. . . fraudulent activities, acting in bad faith out of self-interest and/or malice toward Lane." Under this standard, Lane's complaint sets forth facts sufficient to maintain an action as a third party, nonclient against Niebler.

2. Attorney Ability to Conspire With a Client

¶ 20. Next, Niebler argues that the trial court properly dismissed Lane's civil conspiracy claim because it legally was impossible for Niebler and the Scarberrys, as attorney and client, to conspire together. We disagree.

¶ 21. Civil conspiracy requires: "(1) The formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting from such act or acts." Bruner v. Heritage Cos., 225 Wis. 2d 728, 736, 593 N.W.2d 814 (Ct. App. 1999) (citation omitted). To form a conspiracy there must be an agreement to violate or disregard the law, and the persons involved must knowingly be members of the conspiracy. Id. (citing Wis JI — Civil 2800).

¶ 22. Niebler relies on our holding in Ford Motor to support his argument that it was impossible for him to conspire with the Scarberrys. In Ford Motor, we considered whether a corporation and its subsidiary are capable of conspiring. Ford Motor, 137 Wis. 2d at 426. We held that, as a matter of law, a corporation and its wholly owned subsidiary are incapable of engaging in a conspiracy. Id. at 430.

¶ 23. Niebler contends that, like Ford Motor and its subsidiary, he and the Scarberrys are a single unit, with a "complete unity of interests and purpose." We disagree. Unlike Ford Motor and its subsidiary, Niebler is a legal entity distinct and separate from Sharp and the Scarberrys. And that status is not altered by the fact that Niebler was the attorney for the Sharp defendants. As such, Niebler and the Scarberrys were capable of engaging in a conspiracy.

¶ 24. On a related matter, Niebler contends that although Lane alleges a conspiracy between Niebler and the Scarberrys, Lane "cannot specifically point to any wrongful acts performed by [Niebler and his law firm] which would have injured him." In essence, Nie-bler contends that because it was the Scarberrys, not him, who actually took the allegedly unauthorized distribution, he could not be held liable for simply providing them with legal counsel. Niebler is wrong. A conspiracy is a combination of two or more persons acting together to accomplish an unlawful purpose or a lawful purpose by an unlawful means. Edwardson v. Am. Family Mut. Ins. Co., 223 Wis. 2d 754, 760, 589 N.W.2d 436 (Ct. App. 1998), review denied, 2001 WI 43, 242 Wis. 2d 544, 629 N.W.2d 784 (Wis. Mar. 6, 2000) (No. 99-2637). This law does not confer immunity to a conspirator because the conspirator did not receive a benefit from the wrongful act or because another conspirator may have played a more dominant or active role in the conspiracy. Here, Lane alleges that although the Scarberrys took steps to obtain the distribution, Niebler did much of the groundwork. Those allegations are sufficient to withstand Niebler's motion to dismiss.

3. Badger Cab v. Soule

¶ 25. We now move to the issue on which the trial court decided this case. The court dismissed Lane's action against Niebler and his law firm based on the policy considerations in Badger Cab. Relying on Badger Cab, the court found that the current litigation, which included Niebler as a defendant, would be delayed by the "problems that exist inherently in the involvement of the attorney and the client and their conduct and protections that need to be afforded under the law versus the necessity to protect Mr. Lane's interests." The court also questioned the urgency in resolving Niebler's role in the litigation noting that Niebler and his firm could be made accountable in subsequent litigation if necessary based on the outcome of Lane's case against the Sharp defendants.

¶ 26. Lane contends that Badger Cab does not apply to the facts of this case and that the trial court erroneously exercised its discretion in granting Niebler's motion to dismiss. Lane argues that "Badger Cab is limited to claims for malicious prosecution and does not apply where, as here, counsel is alleged to have participated in conduct giving rise to the underlying claims." We agree and conclude that the holding in Badger Cab does not preclude Lane's claim against Niebler.

¶ 27. In Badger Cab, the plaintiff taxi drivers brought an action against Badger Cab alleging various statutory violations. Badger Cab, 171 Wis. 2d at 757-58. Badger Cab then brought a counterclaim joining opposing counsel and alleging that counsel's prosecution of the action constituted an abuse of legal process and a civil conspiracy to abuse that process. Id. at 758. Under those circumstances, the court of appeals concluded that the defendants were "precluded from counterclaiming against plaintiffs' counsel for the prosecution of a lawsuit in the underlying lawsuit." Id. at 760.

¶ 28. In so deciding, the court noted that allowing counterclaims against opposing counsel would create a conflict of interest which would require substitution of counsel and would likely have a negative effect on the attorney-client privilege and work product immunity. Id. The court concluded that these difficulties could be avoided by simply requiring the claims against opposing counsel to be brought after termination of the principal lawsuit. Id. at 761.

¶ 29. This case is factually distinct from Badger Cab, and we think these distinctions are important. First, Niebler has not prosecuted any action against Lane on behalf of the Scarberrys or Sharp. Second, and far more important, Lane's claims against Niebler stem from Niebler's alleged fraudulent or conspiratorial conduct prior to this litigation — not from his conduct relating to the litigation itself or his representation of the Sharp defendants during that process.

¶ 30. The Badger Cab court was concerned about the potential for jury confusion if the underlying claims were tried in conjunction with the counterclaims for abuse of process. Id. We agree. A jury might well have difficulty discriminating between the merits of the underlying claim and the merit, or lack of it, in bringing the action. But that potential for confusion is not present in this case. As we have noted, the claim against Niebler does not stem from any action he undertook during the time he represented the Sharp defendants in this litigation. Rather, the allegations against Niebler and the Sharp defendants all stem from their alleged collective conduct seeking to defraud Lane of his claimed contractual rights. Juries routinely hear such claims involving multiple defendants in a single action.

¶ 31. We acknowledge that Badger Cab expressed concern about: (1) disqualification of the lawyer from representing the client, and (2) the attorney-client privilege and work product immunity. Id. at 760. And we further acknowledge that by limiting Badger Cab as we have, the lawyer is necessarily barred from representing the client in the kind of situation in the case at bar. But that is a price that must be paid where the lawyer is alleged to have engaged in actionable conduct. Our holding, however, does not jeopardize the attorney-client privilege or the work product immunity governing Niebler's attorney-client relationship with the Sharp defendants.

¶ 32. We conclude that where, as here, the attorney's alleged actionable conduct predates the litigation and is unrelated to the prosecution of the claim or the attorney's conduct during the litigation, Badger Cab does not bar a simultaneous prosecution of the claim against the client and the attorney in the same action. We therefore conclude that the trial court erroneously exercised its discretion in dismissing Lane's claims against Niebler.

Conclusion

¶ 33. We conclude that Niebler may be held liable to Lane, a third party, nonclient, for fraudulent acts committed within an attorney-client relationship. We also conclude that an attorney and the client are capable of engaging in a conspiracy. Finally, we conclude that Badger Cab does not preclude Lane from pursuing his claims against Sharp, the Scarberrys and Niebler in this single action. We therefore reverse the trial court's order dismissing without prejudice Lane's claims against Niebler. We remand to the trial court for further proceedings.

By the Court. — Order reversed and cause remanded.

       This is the second appeal arising out of this litigation. The defendants, Niebler and Sharp Packaging, Inc., filed the first appeal, No. 00-1797, which stemmed from a nonfinal order pertaining to discovery. On January 10, 2001, we certified the issues in that appeal to the Wisconsin Supreme Court. Our certification was accepted by the supreme court on March 6, 2001, and the parties await a decision.

       Lane's amended complaint is much more detailed than our recital of the facts. We set forth only those facts we deem necessary for our discussion of the appellate issues.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       Although Niebler raised this threshold issue in his motion to dismiss, the trial court did not address this question. Instead, the trial court limited its ruling to the Badger Cab Co. v. Soule, 171 Wis. 2d 754, 492 N.W.2d 375 (Ct. App. 1992), issue, a matter we will discuss later.

       Niebler also raised this issue in his motion to dismiss. As with the first issue, the trial court did not address this question, limiting its holding to the Badger Cab issue.

       This consequence is less onerous to the Sharp defendants in this case since Niebler served as co-counsel with Stafford & Rosenbaum. After Lane filed his amended complaint naming Niebler as an additional defendant, the Stafford firm continued its representation of the Sharp defendants.


source: Caselaw Access Project

author: DEININGER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Juan M. Navarro, Defendant-Appellant.
    Court of Appeals

      No. 00-0795-CR.

      Submitted on briefs June 11, 2001.

    Decided September 27, 2001.

    2001 WI App 225
    (Also reported in 636 N.W.2d 481.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Joseph M. Moore, assistant state public defender of Juneau.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Diane M. Welsh, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, RJ., Dykman and Deininger, JJ.
   DEININGER, J.

¶ 1. The State is prosecuting Juan Navarro, an inmate at Waupun Correctional Institution, for battery by a prisoner. Navarro allegedly assaulted a correctional officer, and he asserts that he intends to claim at trial that he acted in self-defense. We granted Navarro leave to appeal an order denying his motion for an in camera inspection of confidential records possibly containing reports of abusive treatment of inmates by the correctional officer. We conclude that the trial court erred by prematurely denying Navarro's request without giving him the opportunity to establish the materiality of the records to his defense. We therefore reverse and remand to permit the court to consider Navarro's request under the correct legal standard.

BACKGROUND

¶ 2. The correctional officer testified at the preliminary hearing that he was escorting Navarro to the shower when Navarro became disruptive and began banging on another inmate's cell door with his "flip-flops." The officer told Navarro that due to his behavior they would return to his cell. According to the officer, Navarro then pulled away from him and lunged at him. The officer testified that he took Navarro to the ground in an attempt to regain control of the situation, at which time Navarro kicked him in the back of the head and bit his hand. The officer acknowledged that at the time of the incident, Navarro was in handcuffs which were fastened to a belt around his waist.

¶ 3. Following his arraignment, Navarro filed a "Supplemental Demand for Exculpatory Materials," moving the court to order the prosecution to turn over:

Copies of inmate complaints made and the responses to those complaints as well as the disciplinary actions taken, if any, against [the correctional officer] related to excessive use of force towards inmates, and any other documents related to violations by [the correctional officer] of Department of Corrections Rules, Policies or Procedures related to interaction with inmates.

Navarro's counsel asserted in a brief supporting the motion that "at trial [Navarro] will assert that as he stood shackled about the waist and wrist he was assaulted by the alleged victim and attempted to defend himself from attack." Counsel also asserted Navarro "intends to offer evidence of his fear of the alleged victim based upon his knowledge of the alleged victim's attacks on other inmates. . . [and] of the alleged victim's reputation in the community for violence and abusive behavior."

¶ 4. Navarro's counsel also clarified in the brief that Navarro was seeking an in camera inspection of the requested records, citing State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993); and State v. Munoz, 200 Wis. 2d 391, 546 N.W.2d 570 (Ct. App. 1996). He argued that the confidential records were relevant and might prove helpful to Navarro's defense, specifically:

The records sought will provide the Defendant with the identity of individuals whom:
(1) observed and complained about the violence done to the Defendant.
(2) observed and complained of the violence the Defendant is aware of that's been done to other inmates.
(3) were the victims of violence the Defendant observed done to others.
(4) have relevant testimony concerning the alleged victim's reputation for being a violent person.

¶ 5. The trial court denied Navarro's motion without an evidentiary hearing, in part, because Navarro had not shown that the officer's personnel records were "within the possession, custody, or control of the state." The trial court also stated that Navarro had not shown the records were "exculpatory evidence" under Wis. Stat. § 971.23(1)(h). Navarro moved for reconsideration, but the court again denied Navarro's discovery request, stating that the records "are not within the D.A.'s control," and noting that "the Shiffra case deals with a different kind of record, namely psychiatric records." We granted Navarro leave to appeal the trial court's order denying his request for an in camera inspection of records relating to inmate complaints filed and disciplinary actions taken against the complaining witness.

ANALYSIS

¶ 6. This appeal involves whether, under Shiffra, Navarro is entitled to an in camera inspection of confidential records relating to the correctional officer who is the complaining witness in this prosecution for battery by a prisoner. Whether a defendant is entitled to an in camera inspection of confidential records implicates the defendant's right to due process of law. Shiffra, 175 Wis. 2d at 605. We review constitutional questions de novo, without deference to the trial court. Id.

¶ 7. Before a trial court may order an in camera inspection of confidential records relating to a complaining witness, the defendant must make a preliminary showing that the records sought are material to his or her defense. Id. We concluded in Jessica J.L. v. State, 223 Wis. 2d 622, 589 N.W.2d 660 (Ct. App. 1998), that a trial court need only conduct an evidentiary hearing on a defendant's Shiffra request if a defendant alleges facts which, if true, are sufficient to entitle him or her to the relief sought. Id. at 634 (citing State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996)). We decide de novo whether the facts alleged in a motion "are sufficient to require the court to hold a hearing on the materiality of the records or whether the motion may be denied without a hearing." Id. at 629.

¶ 8. The trial court denied Navarro's motion for an in camera inspection of confidential records relating to the complaining witness without conducting an evi-dentiary hearing on their materiality to Navarro's defense. The court did not expressly consider, however, whether Navarro had made sufficient allegations under Shiffra and Jessica J.L. to merit a hearing. Rather, the court apparently believed that the Shiffra analysis was not applicable for several reasons: (1) the records in question were not in the prosecutor's possession; (2) the records were not psychiatric records; and (3) Navarro had not shown the records were "exculpatory evidence" under Wis. Stat. § 971.23(1)(h). We conclude the trial court erred in denying Navarro's motion for the reasons it stated.

¶ 9. First, we expressly rejected in Shiffra the argument that access to records sought by a defendant may be denied simply because the records are not within the State's possession. Shiffra, 175 Wis. 2d at 606-07. Next, although Shiffra and several other cases deal specifically with psychiatric or mental health counseling records, nothing in our analyses in these cases suggests that the governing principles apply only to mental health records. In Shiffra, for example, we referred generally to "sought-after evidence," id. at 605-08, and we relied in our analysis on two U.S. Supreme Court cases, neither of which dealt with psychiatric or counseling records. See Pennsylvania v. Ritchie, 480 U.S. 39, 42-43 (1987) ("investigative files concerning child abuse"); Roviaro v. United States, 353 U.S. 53 (1957) (identity of government informants).

¶ 10. Finally, Wis. Stat. § 971.23(1) is not relevant to the Shiffra materiality inquiry. The statute addresses a district attorney's duty to disclose, upon demand, "materials and information . . . within the possession, custody or control of the state." Id. If a defendant so demands, he or she must be permitted "to inspect and copy or photograph" any "exculpatory evidence" within the State's possession or control. Id. at (1) and (1)(h). Under Shiffra, however, the relief granted if materiality is shown is not unlimited access by the defense to confidential files, but an in camera inspection by the court. As we recently noted in State v. Walther, 2001 WI App 23, 240 Wis. 2d 619, 623 N.W.2d 205, "a trial court's in camera review 'is a limited intrusion that often provides the best tool for resolving conflicts between the sometimes competing goals of confidential privilege and the right to put on a defense.' " Id. at ¶ 14 (citations omitted).

¶ 11. We acknowledged in Walther that a defendant must establish "more than the mere possibility" that confidential records "may be helpful," and we reiterated that the necessary showing is that the requested records " 'may be necessary to a fair determination of guilt or innocence,'" id. at ¶ 10-11 (citing Munoz, 200 Wis. 2d at 397-98). We also suggested in Walther, however, that trial courts should "carefully consider" granting inspection in "close calls," id. at ¶ 14, and we concluded that the necessary showing had been made in that case, even though the information constituted only "potentially fertile ground for cross-examination." Id. at ¶ 12. We conclude, therefore, that the trial court erred in denying Navarro's request without a hearing on the basis that he had not demonstrated an entitlement to discover "exculpatory evidence" under Wis. Stat. § 971.23(1)(h).

¶ 12. The alleged basis for the materiality to Navarro's defense of the records he seeks is not that information in the confidential files may serve to undermine the complaining witness's credibility, which has often been the claim in Shiffra cases. Rather, Navarro seeks access to the complaining witness's personnel file, or other confidential prison files, which may contain information to support his claim of self-defense. Accordingly, we examine his allegations in light of the elements of the defense:

The law of self-defense allows the defendant to threaten or intentionally use force against another only if:
• the defendant believed that there was an actual or imminent unlawful interference with the defendant's person; and,
• the defendant believed that the amount of force the defendant used or threatened to use was necessary to prevent or terminate the interference; and
• the defendant's beliefs were reasonable.
... In determining whether the defendant's beliefs were reasonable, the standard is what a person of ordinary intelligence and prudence would have believed in the defendant's position under the circumstances that existed at the time of the alleged offense. The reasonableness of the defendant's beliefs must be determined from the standpoint of the defendant at the time of the defendant's acts....

Wis JI — Criminal 800 (footnotes omitted); see also State v. Head, 2000 WI App 275, ¶ 9, 240 Wis. 2d 162, 622 N.W.2d 9, review granted, 2001 WI 43, 242 Wis. 2d 543, 629 N.W.2d 783 (Wis. Mar. 06, 2001) (No. 99-3071-CR).

¶ 13. Thus, a defendant's state of mind at the time of the alleged offense is relevant to his or her claim of self-defense. In particular, a defendant must establish that he or she believed the alleged victim was about to unlawfully inflict harm, and that the belief was reasonable. The supreme court held in McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973), that when there is a sufficient factual basis for a claim of self-defense, a defendant may support the defense by establishing "the turbulent and violent character of the victim by proving prior specific instances of violence within his knowledge at the time of the incident.. . . [I]t must be shown that he knew of such violent acts of the victim prior to the affray." Id. at 152. Therefore, in order to introduce evidence at trial of the officer's reputation for violence or past violent acts toward inmates, Navarro must establish that at the time of the incident he knew of that reputation or of those acts.

¶ 14. Navarro argues that, through his counsel, he made sufficient allegations regarding the materiality of the records he seeks to warrant a Shiffra materiality hearing. When the trial court first considered Navarro's request for access to records of inmate complaints and disciplinary actions relating to the correctional officer, his counsel told the court " [Navarro]'s going to get up and, yes, he's going to talk about his' own fear of this man and his own knowledge of this man." In his brief which followed, Navarro's counsel asserted that "at trial [Navarro] will assert that as he stood shackled about the waist and wrist he was assaulted by the alleged victim and attempted to defend himself from attack," and further that Navarro "intends to offer evidence of his fear of the alleged victim based upon his knowledge of the alleged victim's attacks on other inmates . . . [and] of the alleged victim's reputation in the community for violence and abusive behavior."

¶ 15. We agree with the State that Navarro's allegations could have been considerably more specific, for instance, by identifying specific past incidents involving the correctional officer of which Navarro was aware, or by providing the names of inmates allegedly abused by the officer prior to the date of Navarro's alleged battery. Nonetheless, the question presently before us is not whether Navarro's assertions are sufficient to require the court to order an in camera inspection of the requested records, but whether they are sufficient to permit him to make the requisite showing of materiality at an evidentiary hearing.

¶ 16. We conclude that Navarro's allegations, communicated through counsel, are sufficient to merit a hearing. If it is true, as his counsel asserts, that Navarro was aware at the time of the alleged offense of specific past acts of violence by the officer toward inmates, or of the officer's having a reputation for being abusive to inmates, Navarro is arguably entitled to the relief he requests — an in camera inspection of certain confidential records that may contain information corroborating the officer's past acts or reputation. See Jessica J.L., 223 Wis. 2d at 634.

¶ 17. Accordingly, we reverse the order denying Navarro's request and direct that, on remand, the trial court conduct an evidentiary hearing to permit Navarro to demonstrate, if he can, that the records he seeks are material to his defense under the standard discussed in Shiffra, Munoz and Walther. Navarro should also specify in greater detail at the hearing the nature of the records he seeks, so that the trial court may properly consider whether he has made a sufficient showing to obtain an in camera inspection of them. In particular, we note that the State asserts in its brief that inmate complaints "are filed by inmate, not by employees who may be mentioned in the complaint." Greater specificity may thus be required in order for the court, or ultimately the custodian of the records, to determine whether the requested records exist and whether they are retrievable.

¶ 18. Finally, we briefly address an argument which may resurface at the Shiffra hearing. The State contends that if Navarro in fact witnessed violence by the officer against other inmates, then he should already know the identities of those inmates and should not burden the institution with locating and disclosing information which can be obtained through other means. In essence, the State argues that, where information can be obtained from non-confidential sources, the court should not compel disclosure of confidential information. We disagree:

It may well be that the evidence contained in the... records will yield no information different from that available elsewhere. However, the probability is equally as great that the records contain independently probative information. It is also quite probable that the quality and probative value of the information in the reports may be better than anything that can be gleaned from other sources.... It is the duty of the trial court to determine whether the records have any independent probative value after an in camera inspection of the records.

Shiffra, 175 Wis. 2d at 611.

CONCLUSION

¶ 19. For the reasons discussed above, we reverse the appealed order and remand to the circuit court for further proceedings consistent with this opinion.

By the Court. — Order reversed and cause remanded with directions.

        See Wis. Stat. § 940.20(1) (1999-2000). All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

        See Wis. Stat. § 808.03(2) and Wis. Stat. Rule 809.50.

       A trial court may also choose, in its discretion, to conduct a hearing even if the allegations are deficient. Jessica J.L. v. State, 223 Wis. 2d 622, 634, 589 N.W.2d 660 (Ct. App. 1998).

        See, e.g., State v. Walther, 2001 WI App 23, ¶ 3, 240 Wis. 2d 619, 623 N.W.2d 205 ("Medical, Psychological, Psychiatric, Residential Treatment and Counseling Records"); Jessica J.L., 223 Wis. 2d at 626, ("psychiatric, psychological, counseling, therapy or clinical records"); State v. Munoz, 200 Wis. 2d 391, 393, 546 N.W.2d 570 (Ct. App. 1996) ("mental health treatment records").

       We also deem it a better practice for a defendant to include the relevant allegations in his or her Shiffra motion, or in an affidavit filed in support of it, rather than by way of counsel's assertions in a brief or during argument, as was done here.