Professional Negligence Law Reporter

A Wisconsin appellate court held that an attorney and law firm were not liable to a workers’ compensation client for failing to provide representation outside the scope of the parties’ retention agreement.

Michael Freude, who was injured when he slipped and fell at work, entered into a retention agreement with Di Renzo & Bomier, LLC. The agreement provided that the firm would represent Freude in his workers’ compensation claim but specified that the firm was not being employed to prosecute any non-workers’ compensation claims, which would require a separate fee arrangement. After Freude changed counsel and settled his claim, he sued the firm and one of its attorneys, Jeffrey Berzowski, alleging legal malpractice for the failure to advise about possible third-party claims. The trial court granted the defense summary judgment.

Affirming, the appellate court noted that a legal malpractice claim must be based on an attorney-client relationship. The court rejected the plaintiff’s argument that the parties’ limited-scope representation gave rise to a duty to advise him about potential third-party claims. The agreement expressly stated that the representation related to workers’ compensation only, the court found, adding that it also excluded representation regarding non-workers’ compensation claims. By expressly carving third-party claims out of the scope of engagement, the agreement identified the third-party claims and eliminated the basis for a duty to give advice on them, the court said.

Accordingly, the court concluded that under the facts of the case, the trial court had not erred in finding that the defendants were not liable for failing to act outside the scope of the agreement.

Citation: Freude v. Berzowski, 2024 WL 3686605 (Wis. Ct. App. Aug. 7, 2024).