Bice: Judge rules lawyer can't claw back fees from disabled ex-cops he never represented

A group of nearly 100 disabled Milwaukee police officers are off the hook.

Milwaukee County Circuit Judge Brittany Grayson issued a decision saying at least 96 retired Milwaukee officers on duty disability do not have to pay an estimated $1.2 million to a Milwaukee attorney who never represented them.

"I thought that was the right decision," said Andrew Wagner, president of the Milwaukee Police Association, which represented the officers who were forced to retire from the force due to injury. "I'm very happy that all the officers will be able to keep their money."

Wagner then called on the Milwaukee Retirement System to now pay the injured officers $3.6 million in back benefits that he said they are owed — a figure that continues to rise as the case is pending. That works out to an average of $37,500 per cop.

Christopher MacGillis, a partner at the MacGillis Wiemer law firm, did not immediately respond to comment. He was seeking a third of that payout.

MacGillis has the right to appeal the ruling.

Last year, MacGillis' firm won a Supreme Court decision that forced the city to recalculate how it determines benefits for 170 retired firefighters on duty disability. As a result, the injured firefighters are expected to receive additional payment of more than $4 million. MacGillis' firm is expected to receive one-third of that sum.

After the Supreme Court ruling, the city decided to recalculate the benefits for 96 retired Milwaukee cops on duty disability.

MacGillis argues that the police officers should pay his firm a third of their back benefits, citing a legal theory called the "common fund doctrine," which says a lawyer who recovers a pool of money for individuals other than his clients, is entitled to a fee from the entire sum.

His firm had accused the Milwaukee cops on duty disability of "unjust enrichment" if they didn't fork over the money.

But Grayson did not buy the argument.

In a 15-page ruling, Grayson held that a common fund "has not actually been created or preserved as a result of Plaintiffs’ efforts in this litigation." She likened the back funds more to a "common benefit" to which a number of individuals shared an interest.

Beyond that, Grayson said, the common fund doctrine requires that beneficiaries be a small, easily identifiable group. But she said that is not the case here because more officers could benefit in the future from the Supreme Court ruling.

"The court is persuaded … that there is not a true common fund from which the court may order attorney fees to be paid," Grayson concluded.

"Rather than creating or preserving a common fund through plaintiffs’ collective efforts in this litigation,(city officials) owe each affected benefits claimant an individually determined retroactive DDR (duty-disability retirement) payment award, of which no other benefits claimant has a shared interest."

In a statement, the Milwaukee police union pointed out that the injured officers have been waiting to receive their back benefits while the lawyers have been arguing this case, even though the city was prepared to pay out the money last summer.

"We expect the city will now move expeditiously to pay these officers," the statement said. "Our members risk their lives for this community every day — and many have paid for it with a myriad of health issues that forced them into an early retirement. Our injured officers deserve better."

MacGillis' efforts to collect one-third of the money being paid out to the injured cops had elicited strong criticism from two leaders of the International Union of Police Associations.

"Your suit would have them extorted," wrote Sam Cabral, president of the union, and Michael Crivello, its secretary-treasurer. Crivello used to head the Milwaukee Police Association.

MacGillis did not respond to the criticism.

The case was prompted by former City Attorney Grant Langley's determination in 2017 that the retirement system should not use a 5.8% pension offset payment when calculating duty disability benefits for injured Milwaukee police, police supervisors and firefighters who had been hired before Oct. 3, 2011.

The move cut benefits for those former city employees and forced some to pay back up to $6,000 in past benefits they had received from the retirement system.

A lower court agreed with the retired firefighters, but that decision was reversed by a court of appeals.

Last year, the state Supreme Court again sided with the firefighters in a unanimous ruling. The injured police officers were not part of the case but they benefited when the city decided to recalculate their benefits, too.

Contact Daniel Bice at (414) 313-6684 or dbice@jrn.com. Follow him on X at @DanielBice or on Facebook at fb.me/daniel.bice.

This article originally appeared on Milwaukee Journal Sentinel: Bice: Judge rules lawyer can't claw back fees from disabled ex-cops