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Legal Memorandum: Essential Elements of a Legal Malpractice Action

Issue: Is an attorney liable to a trust beneficiary for legal malpractice under Wisconsin law or the law of surrounding states 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; An attorney-client relationship
Jurisdiction: Federal, Wisconsin
Cited Cases: 148 F.3d 988; 534 N.W.2d 734; 129 Cal. Rptr. 514; 436 N.E.2d 49; 612 N.W.2d 435; 767 N.E.2d 477; 550 N.W.2d 202; 331 N.W.2d 325
Cited Statutes: None
Date: 12/01/2008

Even in the will context, there is a division of opinion on whether liability to a beneficiary should be imposed on an attorney: 

Jurisdictions which have considered this question are divided on the issue. . . . Where courts have shied away from allowing the imposition of liability, concern has been expressed that such liability may conflict with the duty an attorney owes to his client. . . . Courts that have allowed the imposition of liability seem to recognize that it will make attorneys more careful in the execution of their responsibilities to their clients. . . . This is especially true where the beneficiaries of wills have been the injured third parties because . . . “public policy would seem to favor the court’s extending its equitable arm to assist innocent parties seeking just damages resulting from an error committed by another and affecting their rights, which error those innocent parties were never themselves able to correct.”

Auric v. Continental Cas. Co., 111 Wis. 2d 507, 331 N.W.2d 325, 328 (1983) (citations omitted). 

Minnesota law does not appear to extend the right to sue for legal malpractice to trust beneficiaries.  Determining whether an attorney owes a duty to a non-client in Minnesota involves a balancing of a number of factors, such as the extent to which the transaction was intended to affect the non-client, the foreseeability of harm to the non-client, and the connection between the attorney’s conduct and the injury, among others.  Goldberger v. Kaplan, Strangis & Kaplan,