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Freedom To Contract Is A Constitutional Right…Even For Trial Lawyers

Trial lawyers have long been a target of interest groups bent on protecting business. The attacks are usually cloaked as tort reform, which is code for depriving citizens of their constitutional rights to a trial. The latest attack is on the most basic of protections; the freedom to enter into a private contract.

Trial lawyers have long been a target of interest groups bent on protecting business.  The attacks are usually cloaked as tort reform, which is code for depriving citizens of their constitutional rights to a trial.  The latest attack is on the most basic of protections; the freedom to enter into a private contract.

The legislature has decided that chiropractors may interfere with the contract between a lawyer and her client.  The law requires the lawyer to pay the chiropractor out of her fee, regardless of the contract between the lawyer and the client.  The law is part of the budget, and can be found at sec. 895.453.  The legislature of this state has decided that it has the power to interfere with this basic contractual right.  The Wisconsin Supreme Court held:

“Free will in making private contracts, and even in greater degree in refusing to make them, is one of the most important and sacred of the individual rights intended to be protected.”

And

“Liberty includes not only the right to labor, but to refuse to labor, and consequently the right to contract to labor or for labor, and to terminate such contracts, and to refuse to make such contracts.”

It is clear that this law makes the lawyer the collection agent for the chiropractor, and more.  It requires the lawyer to pay for chiropractic services the lawyer neither asked for nor received.

Can you imagine the logical extension of this law?  There is no logical difference between chiropractors and other health care providers.  Physical therapists and dentists may be next.  The logic of the law should extend to landlords too.  Let’s say the injured person can’t work, and falls behind on his rent.  The legislature could pass a law that allows the landlord to step in and take the back rent out the attorney’s fee.  It is the same concept.

There is no reason to limit this law to attorneys either.  It could apply to realtors.  Let’s say a realtor gets a commission on the sale of a home.  The legislature could pass a law that requires the realtor to pay outstanding bills related to the home out of the commission; delinquent property taxes, an old plumber’s bill, and so on.

It may be easy to take shots at trial lawyers, but if this bill stands, it is only a matter of time before other interest groups start looking at this law as a way to protect their economic interests.  At that point, all of us are at risk.

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