As a general rule, attorneys aren’t liable to third parties in tort.
However, a July 14 opinion by the Wisconsin Supreme Court created an exception, permitting an attorney to be sued for intentionally aiding a client in drafting a will to evade his obligations under a divorce agreement.
Justice Ann Walsh Bradley wrote for the court:
“We agree that in most cases, an attorney is immune from liability to third parties based on the attorney’s failure to perform a duty owed to a client. However, failure to perform an obligation to a client is entirely distinct from conduct that assists the client committing an unlawful act to the detriment of a third party.”Robert Tensfeldt and his first wife, Ruth, had three children. When they divorced in 1974, the divorce judgment provided that Robert would maintain a will granting at least two-thirds of his net estate to the adult children.
Robert remarried, and in 1981 (and in several later revisions), drafted a new will contrary to the divorce judgment. Attorney Roy C. LaBudde drafted the new wills.
After LaBudde scaled back his practice, Tensfeldt was represented by attorney F. William Haberman. It was undisputed that Haberman did not know about the divorce provision until after Tensfeldt died in 2000, and did not draft any will for Tensfeldt, but was negligent in providing advice in an unrelated aspect of the law.
The estate was probated in Florida, and was settled after extensive litigation. The children then sued LaBudde and Haberman in Wisconsin, alleging negligence against both, and intentional tort against LaBudde.
The Supreme Court held that both attorneys were entitled to summary judgment on the negligence claims, but that the intentional tort claim could proceed against LaBudde.
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Attorney is liable to third parties for tort