Elements of Legal Malpractice (Tort or Contract)

Lawyer-client relationship

  • Existence of lawyer/client relationship (privity—required for duty).
    • Plaintiff has the burden of proving the existence of the attorney/client relationship.
    • The contractual relationship may be expressed or implied from the circumstances and does not require payment of fees.
    • Depends on the intent of the parties, with the client’s subjective belief prevailing over the lawyer’s.
    • ABA Comment to SCR 20:1.3 Diligence: “[4]
      • …Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so…”

Negligence – a breach of the duty owed to the client

  • Plaintiff must prove negligence through the use of expert testimony. Olfe Gordon, 93 Wis. 2d 173, 181; 286 N.W.2d 573, 576 (1980).
  • Four exceptions to the expert testimony rule:
    • Breach of duty other than a legal duty, g. failure to follow a client’s instruction;
    • An obvious breach of duty that does not involve specialized knowledge, g. failure to file an action within the requisite statute of limitations;
    • Admission of breach duty, and in certain cases, a breach will be found as a matter of law.

Proximate cause – causal relationship between duty and damage

  • To establish causation and injury in a legal malpractice action, the plaintiff is often compelled to prove the equivalent of two cases in a single proceeding or what has been referred to as a “suit within a suit.” This entails establishing that “but for the negligence of the attorney, the client would have been successful in the prosecution or defense of an action.” Glamann v. St. Paul Fire & Marine Insurance Co., 144 Wis. 2d. 865, 870, 424 N.W.2d 924, 926 (1988).