Legal Memorandum: Elements of a Legal Malpractice Action in WI

Issue: Is an attorney liable to a trust beneficiary for legal malpractice under Wisconsin law if the beneficiary did not have a direct attorney-client relationship with the attorney?

Area of Law: Estate Planning & Probate, Personal Injury & Negligence
Keywords: Legal malpractice action; Trust beneficiary; Attorney-client relationship
Jurisdiction: Wisconsin
Cited Cases: 283 N.W.2d 410; 418 N.W.2d 27; 730 N.W.2d 173; 625 N.W.2d 297; 331 N.W.2d 325; 737 N.W. 2d 433
Cited Statutes: None
Date: 12/01/2008

Generally, a client bringing a legal malpractice action in Wisconsin must establish the following four elements:  (1) an attorney-client relationship; (2) a negligent act by the attorney; (3) a causal connection between the negligence and the damages; and (4) damages.  Tallmadge v. Boyle, 730 N.W.2d 173, 178 (Wis. Ct. App.), rev. denied, 737 N.W. 2d 433 (Wis. 2007).  Whether a beneficiary may bring a legal malpractice action against an attorney in a trust or will situation frequently depends on the existence of an attorney-client relationship.  This Memorandum focuses on the law that applies if no direct attorney-client relationship exists between the beneficiary and the attorney. 

Wisconsin law clearly creates an exception to the attorney-client relationship requirement for a will beneficiary who desires to bring a legal malpractice action.  For example, in Auric v. Cont’l Cas. Co., 331 N.W.2d 325, 327 (Wis. 1983), the court concluded that a will beneficiary “may maintain a legal malpractice action against an attorney who negligently drafts or supervises the execution of a will even though the beneficiary is not in privity with that attorney.”  Id.  The court’s holding noted that the question of whether liability should be imposed on the attorney to a third-party beneficiary was one of public policy.  In Beauchamp v. Kemmeter, 625 N.W.2d 297 (Wis. Ct. App. 2000), the court described the will exception as follows: “third parties may not maintain a cause of action for malpractice against the drafting attorney unless they […]

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