BRENNAN, J.
¶ 1 Godfrey & Kahn, S.C., petitions for a supervisory writ of prohibition, pursuant to WIS. STAT. § 809.51 (2009-10),
¶ 2 Godfrey & Kahn argues that a writ of prohibition is necessary because the basis for the trial court's sanction was the law firm's pre-litigation legal advice, which is not a permissible basis for the exercise of inherent power, especially where, as here, the law firm was never given notice or an opportunity to be heard prior to the sanction. Christopher Stone, the party whose legal costs and fees Godfrey & Kahn was ordered to pay, argues that the writ should not issue because the trial court's sanction was imposed, not for Godfrey & Kahn's pre-litigation conduct, but for its trial strategy, which is a permissible basis for the trial court's exercise of inherent authority.
¶ 3 We conclude that the record, particularly the trial court's own words in its ruling, clearly shows that the trial court imposed the sanction for pre-litigation legal advice that the trial court believed Godfrey & Kahn had given to its client, Midwest. And while it is well-established law in Wisconsin that trial courts have broad inherent powers to enable them to function as courts, see State v. Cannon, 196 Wis. 534, 536, 221 N.W. 603 (1928) ("Such powers have been conceded because without them [courts] could neither maintain their dignity, transact their business, nor accomplish the purposes of their existence."), neither party cites to any legal authority justifying the exercise of inherent powers to sanction for pre-litigation legal advice, nor could we find any. Rather, the test for whether a court can invoke its inherent power to sanction is whether such action is necessary for the court to properly function. See State v. Braunsdorf, 98 Wis.2d 569, 580, 297 N.W.2d 808 (1980) ("These cases teach that an inherent power is one without which a court cannot properly function."); see also Jacobson v. Avestruz, 81 Wis.2d 240, 245-46, 260 N.W.2d 267 (1977) ("`The general control of the judicial business before it is essential to the court if it is to function.'") (emphasis added; citation omitted).
¶ 4 Here, the pre-litigation legal advice on which the trial court based its sanction did not occur in the presence of the trial court, nor did it impede the trial court's ability to function as a court. See id. Indeed, the trial had been completed, and the verdicts had been rendered and affirmed by the time the trial court imposed
¶ 5 Finally, we conclude that a writ of prohibition, while a drastic remedy that should be used with caution, is appropriate here because the trial court lacked authority for the sanction and no other appellate remedy is realistically available to Godfrey & Kahn. As such, we grant the petition for a supervisory writ of prohibition and thereby prohibit the circuit court from entering judgment against Godfrey & Kahn for the opposing party's legal bills and costs.
¶ 6 In order to properly address Godfrey & Kahn's petition for a writ of prohibition, we need to examine some of the facts underlying Stone, and the procedural history of that case leading up to the trial court's ruling that Godfrey & Kahn was responsible for the opposing party's attorney's fees. We set forth those facts here.
¶ 7 In October 2008, Stone sued Midwest for breach of his employment contract (otherwise known as the Key Executive Employment and Severance Agreement or "KEESA") and breach of the implied duty of good faith and fair dealing. Godfrey & Kahn was not and never has been a party to that action; rather, Godfrey & Kahn represented Midwest. Due to judicial rotations and illness, several trial court judges presided over pretrial discovery and dispositive motions. Judge Flynn was assigned to the case on the eve of trial in February 2011.
¶ 8 In March 2011, the matter went to trial. The trial revealed the following facts concerning Stone's termination that are pertinent to Godfrey & Kahn's petition.
¶ 9 On May 30, 2008, Timothy Hoeksema, Midwest's chief executive officer, met with Stone and told him that "based on performance, it was time that we talked about him leaving Midwest." Hoeksema planned to meet with Stone again the following week to discuss the "specifics," including Stone's severance package. Before the second meeting, Hoeksema became concerned about reports that Stone had sexually harassed several female employees. As such, when Hoeksema met with Stone again on June 3, 2008, he informed Stone that Midwest would be investigating the reported conduct. Hoeksema testified at trial that Midwest engaged Godfrey & Kahn on June 3, 2008.
¶ 10 Midwest conducted an internal investigation, and Stone was interviewed, on July 23, 2008, about the complaints against him. On July 25, 2008, via email, Hoeksema advised Stone that the "details of the investigation were provided to [Midwest's] outside counsel [Godfrey & Kahn]. They have [sic] advised that sufficient evidence exists for [Midwest's] Board of Directors to consider whether to terminate you for `cause' in accordance with the terms of your KEESA." In addition, the email notified Stone that if he had any written materials he wanted the Board to consider, he must submit them by July 30, 2008.
¶ 11 Thereafter, on July 28, 2008, Midwest sent Stone a formal notice that the issue of whether to terminate him for cause would be considered at the Board's August 4, 2008 meeting. Immediately after receiving the notice, in anticipation of the August 4 Board meeting, Stone emailed Midwest's in-house counsel, David Sislowski, requesting "copies of any documentation that is being sent by [Midwest] to our Board members in anticipation of this meeting.... This includes any documents prepared by [Godfrey & Kahn] justifying
¶ 12 The following day, on July 30, 2008, in compliance with the deadline set by Midwest for submission of his defensive materials, and despite the fact that he had not yet received any discovery from Midwest, Stone submitted a letter to the Board vigorously denying that he had engaged in any conduct that would justify his termination for cause. In the letter, Stone generally denied that he had engaged in any inappropriate conduct, and asked the Board to refer to the responses to the accusations that he had given to the investigator in his July 23 interview.
¶ 13 In a July 31, 2008 letter, Attorney Michael D. Huitink, an attorney with Godfrey & Kahn, informed Stone's lawyer that Midwest would not be turning over all the notes and documents relating to its investigation of the allegations made against Stone because "nowhere does the KEESA require Midwest to turnover [sic] such documents. Moreover, Midwest has serious concerns about inappropriate disclosure or retaliation against its employees that may occur if it turns over such documentation to Mr. Stone." Nonetheless, the letter further stated that Midwest would provide Stone with the Final Investigation Report, which would be considered by the Board, provided that Stone agreed, by signing and returning the letter, that: (1) the report would only be reviewed by Stone and his lawyer; (2) Stone and his lawyer would not duplicate or disseminate the report; and (3) Stone would not retaliate against or contact any of the complainants.
¶ 14 The record appears to be silent on whether Stone signed the release letter,
¶ 15 In preparation for the August 4 Board meeting, Board members were provided with a copy of the Final Investigation Report, Stone's July 30 denial letter, and a confidential memorandum prepared by Godfrey & Kahn. The confidential memorandum is not part of the record. The Midwest investigator was available at the meeting to answer the Board's questions about her report, and both Stone and his attorney were given an opportunity to give statements. Stone chose not to individually address each of the twelve allegations set forth in the Final Investigation Report, despite receiving a copy of the report three days prior to the Board meeting. None of the complainants were present. The Board voted unanimously to terminate Stone for "[c]ause" because of "a pattern of ... inappropriate conduct" with female employees.
¶ 16 Subsequently, Stone sued Midwest for wrongful termination. Stone attempted to show the jury at the March 2011 trial that Midwest breached the KEESA and its duty of good faith and fair dealing in terminating him. The breach-of-good-faith claim was premised on Stone's contention that Midwest had not given him all of the notes and reports prepared by the investigator
¶ 17 During Stone's direct examination at trial, he addressed each of the twelve allegations of sexual harassment set forth in the Final Investigation Report, rebutting each one in turn. On cross-examination, Midwest, through its counsel, Attorney Huitink of Godfrey & Kahn, asked Stone why he failed to individually address each of the twelve allegations at the August 4 Board meeting like he did at trial, and suggested that Stone strategically chose not to address each of the allegations at the August 4 Board meeting because he wanted to avoid Midwest calling each complainant in to testify before the Board.
¶ 18 Stone's attorney objected to this line of questioning, and after the jury was excused, the trial court heard argument. Stone's attorney stated that the basis for his objection was that he believed Attorney Huitink was trying to get inadmissible evidence before the jury, namely, the Interview Summaries, which were not before the Board at the August 4 Board meeting and which the trial court had previously ruled were inadmissible. In response, Attorney Huitink denied that it was his intent to open the door to the Interview Summaries. Rather, he argued that he was simply seeking to elicit Stone's confirmation that the choice not to rebut the twelve allegations in the Final Investigation Report at the August 4 Board meeting was strategic and designed to prevent the complaining witnesses from being called to testify. Attorney Huitink argued that this rebuttal to Stone's testimony addressing each of the twelve allegations set forth in the Final Investigation Report was fair and necessary because Midwest was not permitted to call each complaining witness at trial.
¶ 19 The trial court sustained Stone's objection, saying:
¶ 20 In the process of making that ruling, the trial court also said that Midwest, through its attorneys at Godfrey & Kahn, was "not just crossing the line, but going a hundred miles beyond the line" because the trial court believed that Godfrey & Kahn improperly "chose not to give to [Stone], the information it had relative to the charges against him" prior to the August 4 Board meeting. The trial court, calling Godfrey & Kahn's actions prior to the August 4 Board meeting "almost Kafkaesque,"
¶ 21 Following closing statements, the case was handed over to the jury. The jury found that Midwest did not breach the KEESA but that it had breached the duty of good faith and fair dealing, and awarded Stone $405,000 in damages.
¶ 22 Addressing the parties' motions after the verdicts, the trial court affirmed the jury's verdicts, but then the court, sua sponte, found that the breach of good faith was not created by Midwest, but by Godfrey & Kahn through its legal advice to Midwest prior to the August 4 Board meeting:
¶ 23 In support of its finding, the trial court pointed to the July 31 letter Attorney Huitink sent to Stone's lawyer, informing him that Midwest would not be turning over to Stone all of the documents he requested. The trial court stated:
¶ 24 In short, the trial court attributed Midwest's bad faith to Godfrey & Kahn, stating that: "Once [Godfrey & Kahn] became involved with these requirements, the law firm acted as an obstacle to truth. We have no knowledge of anyone in [Midwest] being involved in the decisions that were made in this regard other than the law firm." The trial court also found that Godfrey & Kahn's decision not to turn over all of the discovery to Stone was contrary to the law, stating that both the KEESA and Wisconsin's law of good faith and fair dealing required the documents to be turned over.
¶ 25 The trial court then ordered Godfrey & Kahn to pay all of Stone's legal bills and his costs, stating:
¶ 26 Before the trial court was able to memorialize its oral ruling in writing, Godfrey & Kahn filed, on its own behalf, the petition for a supervisory writ of prohibition that is currently pending before this court, and simultaneously asked us to prohibit the trial court from signing and entering judgment against it in the underlying case. To ensure that the issues raised by Godfrey & Kahn were not rendered moot, we issued a temporary order barring the trial court from entering a judgment for legal fees against Godfrey & Kahn. The order also directed the parties to file responses to Godfrey & Kahn's petition.
¶ 27 After receiving the parties' responses to the petition, we issued a second order, continuing the temporary stay and remanding with directions that the trial court conduct a hearing to afford Godfrey & Kahn an opportunity to present evidence and argument on the propriety of the sanction against it. Godfrey & Kahn immediately moved for reconsideration of our remand order, citing judicial bias and ethical considerations concerning its representation of Midwest. Godfrey & Kahn noted that the only way it could defend itself on remand against the trial court's charge would be to "offer[ ] evidence that is confidential to Midwest and protected by the attorney-client privilege and the work-product doctrine, something it may not do," and that remand could create conflict issues that may deprive Midwest of its counsel of choice.
¶ 28 Having considered Godfrey & Kahn's motion for reconsideration, we entered a third order, continuing the temporary
¶ 29 In May 2012, we heard oral argument on the petition for a supervisory writ of prohibition. The parties advised us at oral argument and in Stone's response brief that although Midwest initially filed a notice of appeal in the underlying case, the appeal has been dismissed and the underlying case is concluded.
¶ 30 Godfrey & Kahn's petition for a supervisory writ of prohibition asks us to bar the trial court from entering a judgment against it for Stone's attorney's fees and costs. As grounds, Godfrey & Kahn contends that a judgment against it, based on its supposed pre-litigation conduct, exceeds the trial court's jurisdiction
¶ 31 We conclude that: (1) the record shows that the trial court sanctioned Godfrey & Kahn for pre-litigation legal advice that the trial court believed the law firm gave to Midwest; (2) the trial court did not have the inherent authority to sanction Godfrey & Kahn for its pre-litigation conduct because the conduct did not occur before the trial court or impede the functioning of the trial court; and (3) a writ of prohibition is necessary and appropriate under the unique circumstances of this case.
¶ 32 Stone contends that the trial court properly sanctioned Godfrey & Kahn for its actions at trial, as opposed to pre-litigation legal advice that the trial court believed Godfrey & Kahn gave to Midwest. Thus, Stone argues that the trial court properly invoked its inherent authority when it sanctioned Godfrey & Kahn because Wisconsin law recognizes that the trial court has inherent power to sanction for trial conduct that is "disruptive to the administration of justice." See Jensen v. McPherson, 2004 WI App 145, ¶ 35, 275 Wis.2d 604, 685 N.W.2d 603 (discussing a trial court's inherent authority to impose costs when necessary to penalize conduct "`disruptive to the administration of justice'") (citation omitted).
¶ 33 The transcript of the trial court's ruling, however, belies Stone's argument that the sanction was for Godfrey &
¶ 34 In its oral ruling, the trial court determined that Midwest's bad faith was actually caused by Godfrey & Kahn's supposed pre-litigation legal advice, saying that the jury's verdict against Midwest "focused ... on the [termination] procedure that was utilized, and that was a procedure where the architect, in all respects, was the law firm of Godfrey & Kahn." The trial court concluded that after Godfrey & Kahn became involved with Stone's termination it "acted as an obstacle to truth" by refusing to disclose the Final Investigation Report unless Stone agreed on a number of conditions, preventing both Stone and the Board from accessing the Interview Summaries, and falsely (according to the trial court) representing that Midwest was not required to turn over all of the investigator's notes to Stone under the terms of the KEESA.
¶ 35 Throughout its ruling, the trial court referred only to Godfrey & Kahn's pre-litigation legal advice to Midwest, stating:
As the trial court's own words show, the court based its ruling entirely on what documents the court believed Godfrey & Kahn told Midwest to turn over to Stone prior to the August 4 Board meeting. The court did not mention Godfrey & Kahn's trial conduct at all.
¶ 36 Stone attempts to show that it was Godfrey & Kahn's trial strategy that prompted the trial court's sanction, but we are unpersuaded. Stone points to his objection to Midwest's question to him during trial, and the trial court's remarks when sustaining that objection. Midwest asked Stone whether he strategically choose not to individually rebut each of the twelve allegations against him during the August 4 Board meeting, and Stone objected. The trial court, in sustaining the objection, remarked that Godfrey & Kahn had unfairly advised Midwest that it need not turn over all of the detailed statements of the complaining witnesses to Stone prior to the August 4 Board meeting. These
¶ 37 Stone's argument is unpersuasive because, first and foremost, the trial court never mentioned Godfrey & Kahn's trial strategy when sustaining the objection to Midwest's question during the trial. In fact, the trial court's remarks only mention Godfrey & Kahn's legal advice prior to the August 4 Board meeting, stating that Godfrey & Kahn, through its influence over Midwest, "chose not to give to [Stone], the information it had relative to the charges against him."
¶ 38 Second, the trial court did not sanction Godfrey & Kahn during the trial. If the fair administration of justice was disrupted by Godfrey & Kahn's trial strategy, that is, by asking the objected-to question, as Stone argues, presumably the trial court would have immediately sanctioned Godfrey & Kahn for the question. The trial court's failure to do so clearly indicates that no conduct occurred that was impeding the trial court's ability to perform its function as a court. See State v. Henley, 2010 WI 97, ¶ 74, 328 Wis.2d 544, 787 N.W.2d 350 (A trial court "should only invoke inherent power when such power is necessary to the functioning of the court.").
¶ 39 In sum, when issuing the sanction, the trial court made no mention of Godfrey & Kahn's behavior during trial or the firm's trial strategy. Rather, the record shows that the trial court focused exclusively on, what it believed to be, Godfrey & Kahn's legal advice prior to the August 4 Board meeting as the basis for the sanction.
¶ 40 Moreover, to the extent that Stone is arguing that Godfrey & Kahn's trial strategy, to wit, questioning Stone about his failure to rebut each of the twelve allegations against him during the August 4 Board meeting, was "disruptive to the administration of justice," and that the trial court meant to sanction Godfrey & Kahn for contempt of court, we note that the trial court lacked a legal basis for contempt. Contempt is defined, in relevant part, as intentional "[m]isconduct in the presence of the court which interferes... with the administration of justice...." See WIS. STAT. § 785.01(1)(a). However, a trial court is limited in its ability to impose such a sanction in that it may only do so "immediately after the contempt of court," not almost a month later. See WIS. STAT. § 785.03(2). For all of these reasons, we conclude that the record shows the trial court's sanction was for Godfrey & Kahn's pre-litigation conduct.
¶ 41 The trial court attempted to invoke its inherent authority to effectively and efficiently administer justice when it sanctioned Godfrey & Kahn, stating: "the Court orders, in the exercise of its discretion under case law and statutory law, and
¶ 42 "[Trial] courts have `inherent, implied and incidental powers.'" Henley, 328 Wis.2d 544, ¶ 73, 787 N.W.2d 350 (citation omitted). Inherent "powers are those that are necessary to enable courts to accomplish their constitutionally and legislatively mandated functions." Id. There are three areas in which the courts have generally exercised their inherent authority: "(1) to guard against actions that would impair the powers or efficacy of the courts or judicial system; (2) to regulate the bench and bar; and (3) to ensure the efficient and effective functioning of the court, and to fairly administer justice." Id. A trial court "should only invoke inherent power when such power is necessary to the functioning of the court." Id., ¶ 74; see also Braunsdorf, 98 Wis.2d at 580, 297 N.W.2d 808.
¶ 43 Certainly, a trial court has the inherent authority to sanction a party or its attorney for misconduct during litigation by ordering payment of the opposing party's attorney's fees and costs. See Schultz v. Sykes, 2001 WI App 255, ¶ 2, 248 Wis.2d 746, 638 N.W.2d 604 (trial court has the inherent authority to order a party to pay the opposing party's attorney's fees and to dismiss a case for suborning perjury); Schultz v. Darlington Mut. Ins. Co., 181 Wis.2d 646, 650-53, 658-59, 511 N.W.2d 879 (1994) (trial court has the inherent authority to impose opposing party's costs on defendant's attorney for inappropriate comments in front of the jury during trial); Schaefer v. Northern Assur. Co. of Am., 182 Wis.2d 148, 162, 513 N.W.2d 615 (1994) (trial court "has `inherent authority to sanction parties for failure to prosecute, failure to comply with procedural statutes or rules, and for failure to obey court orders'") (citation omitted); Jensen, 275 Wis.2d 604, ¶¶ 1-2, 33-35, 685 N.W.2d 603 (trial court has the inherent authority to impose attorney's fees and costs against the plaintiff's attorney for failing to obey the trial court's scheduling order); Teubel v. Prime Dev., Inc., 2002 WI App 26, ¶¶ 16-17, 249 Wis.2d 743, 641 N.W.2d 461 (WI App 2001) (trial court has the inherent authority to sanction an attorney for altering marked exhibits); Johnson v. Johnson, 199 Wis.2d 367, 376-78, 545 N.W.2d 239 (Ct.App.1996) (trial court has the inherent authority to sanction a party for overtrial).
¶ 44 However, here, as we set forth in some detail above, the trial court sanctioned Godfrey & Kahn for pre-litigation legal advice that the trial court believed that the law firm gave to Midwest. The trial court did not sanction Godfrey & Kahn for its conduct during litigation. The trial court never mentioned Godfrey & Kahn's conduct during the trial, the pleadings, or the pretrial scheduling orders.
¶ 45 The parties have not cited to any case, and our research has not revealed one, which suggests that the trial court has the inherent authority to sanction Godfrey & Kahn for conduct which occurred before the court's jurisdiction was invoked. But there is a well-established test in our Wisconsin jurisprudence for the inherent power to sanction: whether "such power is necessary to the functioning of the court." Henley, 328 Wis.2d 544, ¶ 74, 787 N.W.2d 350. Whether it is ever possible for pre-litigation conduct to justify the exercise of
¶ 46 Next, Godfrey & Kahn argues that the trial court denied the law firm due process when it issued the sanction without notice or a hearing to determine what legal advice Godfrey & Kahn gave Midwest during Stone's termination hearing and whether that advice caused Midwest's subsequent conduct. We need not reach the due process argument because we conclude that, based on the record, the trial court lacked the inherent authority to sanction Godfrey & Kahn for pre-litigation legal advice. See Patrick Fur Farm, Inc., 286 Wis.2d 774, ¶ 8 n. 1, 703 N.W.2d 707.
¶ 47 In sum, we conclude that because the trial court lacked the inherent power to sanction Godfrey & Kahn for its supposed pre-litigation conduct, the court acted outside its powers and without authority.
¶ 48 "A supervisory writ is a blending of the writ of mandamus and the writ of prohibition."
¶ 49 A petitioner seeking a supervisory writ for prohibition must show that: (1) "`the duty of the trial court is plain and it ... intends to act in violation of that duty'"; (2) "`grave hardship or irreparable harm will result'"; (3) "`an appeal is an inadequate remedy'"; and (4) "`the request for relief is made promptly and speedily.'" State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 17, 271 Wis.2d 633, 681 N.W.2d 110 (citation omitted). "The decision whether to issue a supervisory writ `is controlled by equitable principles and, in our discretion,
¶ 50 We conclude that Godfrey & Kahn has demonstrated that an extraordinary remedy, to wit, a writ of prohibition, is necessary here.
¶ 51 As we set forth earlier in this decision, we conclude that the trial court clearly acted outside the proper exercise of its powers, see Drugsvold, 13 Wis.2d at 232, 108 N.W.2d 648, and State ex rel. Kowaleski, 254 Wis. at 372, 36 N.W.2d 419, when it sanctioned Godfrey & Kahn for its supposed pre-litigation conduct. In the absence of inherent authority, entering a judgment memorializing that decision is prohibited by the law.
¶ 52 The trial court's ruling from the bench put Godfrey & Kahn in an ethical bind. In order to defend itself against the trial court's accusations of improper pre-litigation conduct, Godfrey & Kahn would have had to reveal confidential communications with Midwest, which were protected by the attorney-client privilege, see WIS. STAT. § 905.03, and perhaps, as Godfrey & Kahn argues, the work-product doctrine, see WIS. STAT. § 804.01(2)(c). If the trial court had entered a judgment for attorney's fees against Godfrey & Kahn, Godfrey & Kahn's interests on appeal — to avoid a substantial money judgment — would directly conflict with Midwest's interests on appeal — to avoid the same substantial money judgment. See SCR 20:1.8. So long as no judgment or order was entered against it, Godfrey & Kahn, ostensibly, was free to continue its representation of Midwest. Had Godfrey & Kahn been forced to conclude its representation of Midwest due to these ethical considerations, Midwest would have been denied its counsel of choice and would have been forced to obtain new counsel unfamiliar with a case that had been ongoing for years. We conclude that these considerations imposed grave hardships upon both Godfrey & Kahn and Midwest and would have resulted in irreparable harm to Midwest, suggesting that a supervisory writ for prohibition, rather than an appeal, is the appropriate course of action in this case.
¶ 53 To be appealable, an order "must be in writing and filed." Ramsthal Adver. Agency v. Energy Miser, Inc., 90 Wis.2d 74, 75, 279 N.W.2d 491 (Ct.App. 1979); see also Helmrick v. Helmrick, 95 Wis.2d 554, 556, 291 N.W.2d 582 (Ct.App. 1980) ("An oral ruling must be reduced to writing and entered before an appeal can be taken from it."). Here, the trial court did not enter a written order or judgment against Godfrey & Kahn from which it can appeal. As such, we conclude that an appeal or a petition to appeal from a nonfinal order are inadequate remedies, as neither is available to Godfrey & Kahn.
¶ 54 We recognize, however, that a written order from which Godfrey & Kahn can appeal has not been entered at our direction, as requested by Godfrey & Kahn. However, we conclude that the unique circumstances of this case, as demonstrated in more detail above, necessitated the order temporarily barring the trial court from entering a written order.
¶ 55 Godfrey & Kahn filed its petition for a supervisory writ of prohibition days after the trial court made its ruling from the bench, before the trial court even had time to enter a written judgment. No party argues that its petition was not promptly filed.
¶ 56 A writ of prohibition is an extraordinary remedy which will not issue unless the court acted without authority or without jurisdiction. Drugsvold, 13 Wis.2d at 231-32, 108 N.W.2d 648; see also State ex rel. Kowaleski, 254 Wis. at 372, 36 N.W.2d 419. That is exactly the case with which we are presented here. Given that the trial court clearly exceeded its authority in ordering Godfrey & Kahn to pay the opposing party's attorney's fees for supposed pre-litigation conduct and that permitting the trial court to enter an order to that effect — and thereby enabling Godfrey & Kahn to file an appeal — would put an unnecessary hardship on both Godfrey & Kahn and Midwest, we conclude that a supervisory writ of prohibition is appropriate in this instance. See Kalal, 271 Wis.2d 633, ¶ 17, 681 N.W.2d 110. Such "`an extraordinary and drastic remedy'" is necessary given the unique circumstances of this case. See id. (citation omitted).
¶ 57 In short, the trial court acted without authority when it sanctioned Godfrey & Kahn, and a writ of prohibition, preventing the court from memorializing its oral ruling, must issue. A trial court's inherent powers are well-established and based on ensuring that our courts have the power to fulfill their very important function. But here, because the trial court invoked its inherent power to sanction a law firm for behavior that was not before the court or in any way necessary to the trial or the court's ability to conduct its judicial business, it erred.
Writ granted.
