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Wisconsin: Public Policy Defense in Legal Malpractice

Bolte v. Joy, 150 Wis.2d 744,443 N.W.2d 23(Ct. App. 1989)

Wis. underlying insurance claim

Student contributor: Cheryl Neuman

Facts: Plaintiff owned a building that was destroyed by fire and retained defendant attorney to represent him in an action against his insurance company with respect to the fire. A jury found that plaintiff had set fire to the building, causing the destruction. Plaintiff alleges that defendant was negligent because he didn’t discover in pretrial discovery that an eyewitness to the fire had given a description of the man seen running from the burning building that clearly excluded plaintiff as that man. Plaintiff claims that he was damaged in his business and professional reputation, suffered mental distress and anguish and that he also suffered from an impaired earning capacity. The trial court granted defendant’s motion for summary judgment because the complaints of the alleged injuries were too remote from the defendant’s negligence and were wholly disproportionate with defendant’s culpability.

Issue: Is defendant liable to plaintiff as a result of the alleged negligence?

Ruling: No. Despite defendant’s negligence, it is appropriate to dismiss this claim on grounds of public policy. Although plaintiff did suffer damages and a ruined reputation as a result of litigation, it would be unjust to award the plaintiff damages resulting from defendant’s negligence in this case. Liability does not always flow from a finding of negligence. The plaintiff set fire to his own building to collect insurance money, therefore precluding him from recovery against his attorney’s negligence, as a matter of public policy.


“The determination to not impose liability in instances where a negligent act has been committed and the act is a ‘substantial factor’ in causing the injury rests upon considerations of public policy.” Coffey v. Milwaukee, 74 Wis.2d 526 (Ct. App. 1976).

In this particular case, recovery was denied on grounds of public policy because:
1) The injury was too remote from the negligence
2) The injury is out of proportion to the culpability of the defendant
3) The recovery would place an unreasonable burden on the defendant , and
4) Recovery would enter a field that has no sensible or just stopping point.
If plaintiff would be allowed to succeed in this malpractice litigation, the door to “litigious flyspecking” would open wide, thereby producing a “chilling effect” upon lawyers to zealously represent their clients. Although the lawyer in this case was not held liable on grounds of public policy, it is always important to conduct proper pretrial discovery to avoid unnecessary litigation. 

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Posted in: Wisconsin