This is an appeal from a judgment awarding to Duffey Law Office, S.C., attorney's fees in connection with its representation of Tank Transport, Inc., and dismissing Tank Transport's counterclaim against the Duffey firm for legal malpractice. The pivotal issue in this case is whether an attorney who represents to a client that the attorney has expertise greater than that of the average Wisconsin lawyer is to be held to a standard of professional care that is consistent with that claimed expertise. We conclude that the answer to this question is "yes," and remand this case because it is not clear whether the trial court applied this standard.
Tank Transport is a Wisconsin trucking company. From an effective date of November 15, 1985, through May 14, 1992, collective bargaining agreements between Tank Transport and Local 200 of the Teamsters union required the company to contribute to the Central States, Southeast and Southwest Areas Pension Fund $13 "for each day worked by a regular employee covered by [the agreements] who has been on the payroll" thirty days or more. The agreements covered "the truck drivers assigned to and working out of
On September 16, 1987, in an apparent attempt by Tank Transport to compete more efficiently with nonunion trucking companies, Tank Transport and Local 200 agreed that employees hired by the company after October 26, 1987, would be covered by a supplemental collective bargaining agreement, which purported to absolve Tank Transport from having to make contributions to the Central States pension fund for those employees, and substituted for them a pension plan authorized by section 401(k) of the Internal Revenue Code. The employees hired after October 26, 1987, and therefore covered by the supplemental collective bargaining agreement, however, had the same duties as those hired before that date.
Contrary to the Central States pension fund trust agreement, which required employers to send to the pension fund "each new or successive collective bargaining agreement" as well as any "agreement or understanding... that in any way alters or affects the Employer's contribution obligation as set forth in the collective bargaining agreement," Tank Transport did not submit to the fund a copy of either the supplemental collective bargaining agreement or the concurrently executed memorandum of understanding between the union and the company.
The architect of the arrangement between Tank Transport and Local 200 for Tank Transport to avoid making payments to the Central States pension fund for those employees hired after October 26, 1987, was Thomas J. Duffey, Esq., a shareholder in Duffey Law Offices. The trial court found that Mr. Duffey "held
Prior to the decision by the United States district court in Tank Transport, Mr. Duffey represented Tank Transport and was able to get the company's dispute with the Central States pension fund referred to arbitration. He also prepared Tank Transport's presentation to the arbitrators. The arbitrators ruled that, contrary to the position taken by the Central States pension fund, and contrary to what the district court would later decide, Tank Transport did not have
This action was started by Duffey's law firm, which sought payment for its representation of Tank Transport. Tank Transport counterclaimed, alleging that Mr. Duffey committed legal malpractice. The case was tried to the court. Proposed findings of fact and conclusions of law were submitted to the trial court by each party. Tank Transport argued that the trial court should hold Mr. Duffey to that "degree of knowledge, care, skill, ability and diligence required of lawyers engaged in the practice of law and working in the field of labor collective bargaining agreements." The Duffey firm, borrowing from the language of the applicable pattern jury instruction, asked the trial court to conclude that Mr. Duffey "exercised that degree of knowledge, care, skill, ability and diligence usually possessed and exercised by attorneys under similar circumstances."
As required by RULE 805.17(2), STATS., the trial court issued findings of fact and conclusions of law. As noted, it found as a fact that Duffey "held himself out to be and was, in fact, an expert lawyer in the field of labor law, collective bargaining agreements and pension fund contribution." Additionally, the trial court, in a paragraph denominated as a "conclusion of law," determined that "Duffey, as an expert in this specific area of the law, reasonably and sufficiently informed Tank of risks inherent in the [two-tier] plan." Nevertheless, in the conclusion-of-law paragraph that immediately follows, the trial court appears to have applied a lesser, generalist's, standard: "That based on the State [sic] of the Law [sic] at the time, Duffey exercised the degree of knowledge, care, skill, ability and diligence usually possessed and exercised by lawyers engaged in the practice of law in this state."
The question of what standard of care applies in a legal malpractice action has never been addressed directly by an appellate decision in this state where that issue was potentially dispositive.
1 RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL MALPRACTICE § 15.4 at 864 (1989). Indeed, the treatise reports that "[n]o court has rejected the concept that a more demanding standard of care should be applied to specialists." Id. at 867. Application of this heightened standard of care was recently recognized in Transcraft, Inc. v. Galvin, Stalmack, Kirschner & Clark, 39 F.3d 812, 815 (7th Cir. 1994). See also Rodriguez v. Horton, 622 P.2d 261, 264 (N.M. Ct. App. 1980) ("A lawyer holding himself out to the public as specializing in an area of the law must exercise the same skill as other specialists of ordinary ability specializing in the same field.") (New Mexico officially adopted legal specialization rules in 1989); Rhodes v. Batilla, 848 S.W.2d 833, 842-843 (Tex. Ct. App. 1993) (applying heightened standard of care to "one who holds himself out as an expert or specialist") (Texas has officially recognized and certified legal specialists since 1975); Bent v. Green, 466 A.2d. 322, 325 (Conn. App. Ct. 1983) (An attorney has duty to exercise "the same degree of care, skill and diligence which other attorneys ... in the same line of practice would have exercised in similar circumstances.") (also applying a locality rule); cf. Battle v. Thornton, 646 A.2d 315, 323 (D.C. App. 1994) (an attorney held to generalist's standard of care unless the attorney "affirmatively represented" that he or she was a specialist).
As we have already seen, the general rule in Wisconsin is that an attorney "is bound to exercise his best judgment in light of his education and experience." Helmbrecht, 122 Wis. 2d at 111, 362 N.W.2d at 128. By the same token, the pattern jury instruction designed for use in legal malpractice cases advises trial courts to instruct juries that lawyers are expected to "exercise that degree of care, skill, judgment which is usually exercised under like or similar circumstances by lawyers licensed to practice in this state," and that whether a lawyer has discharged his or her duty under this standard "depends upon the nature and scope and purpose for which the lawyer is retained." WIS J I—CIVIL 1023.5 (emphasis added). Wright v. Williams, 121 Cal.Rptr. 194 (Cal. Ct. App. 1975), held that similar language in the development of legal-malpractice standards in California warranted application of the higher standard to those lawyers who claim special expertise:
It is uncontested here, and the trial court so found, that Mr. Duffey presented himself as an expert in the areas of labor law, collective bargaining agreements, and pension-fund contribution law. He thus should be held to a standard of care that is consistent with that representation.
We are unable to determine from the trial court's decision whether it applied a generalist's or a specialist's standard in holding that Mr. Duffey was not guilty of legal malpractice. Inasmuch as the issue of whether the Duffey law firm is entitled to any or all of the fees that were awarded to it by the trial court depends on whether Mr. Duffey negligently represented Tank Transport, we reverse the judgment and remand to the trial court with the following directions: (1) the trial court is to determine, in light of this opinion, whether it applied the appropriate standard of care; (2) if the trial court determines that it did apply the appropriate standard of care in light of this opinion, the trial court is to issue revised findings of fact and conclusions of law, and enter the appropriate judgment; (3) if the trial court determines that it applied a generalist's standard of care, it shall either issue revised findings of fact and conclusions of law consistent with this opinion, or, in the alternative, grant to the parties a new trial.
Id., 100 Wis. at 173-174, 75 N.W. at 974. Subsequently, Denzer v. Rouse, 48 Wis.2d 528, 534, 180 N.W.2d 521, 525 (1970), recognized, without extensive discussion or analysis, that although an attorney's judgment need not be infallible, it must be exercised "in the light of his education and experience."
139 Wis. 2d at cv.