Michael Freude v. Jeffrey M. Berzowski

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 7, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP764 Cir. Ct. No. 2020CV602

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

MICHAEL FREUDE,

PLAINTIFF-APPELLANT,

V.

JEFFREY M. BERZOWSKI AND DI RENZO & BOMIER, LLC,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Winnebago County:
DOUGLAS R. EDELSTEIN, Judge. Affirmed.

Before Neubauer, Grogan and Lazar, JJ.

¶1 NEUBAUER, J. In this legal malpractice action, Michael Freude
appeals from an order granting Di Renzo & Bomier, LLC and one of its members,
Jeffrey M. Berzowski (collectively Di Renzo), summary judgment. Di Renzo and
Freude entered into a retention agreement whereby Di Renzo limited the scope of
No. 2023AP764

its representation relating to Freude’s injuries from a slip and fall to his worker’s
compensation claim. The retainer agreement also specified that the law firm was
not employed to bring claims against third parties and that its representation as to
nonworker’s compensation claims would need to be memorialized in a separate
agreement. Freude does not develop an argument that he did not give informed
consent to the limited-scope retention agreement. Nor does he challenge the
validity of the retention agreement or contend that it is unreasonable,
unconscionable, or the product of undue influence or duress. Rather, he agrees
that the only issue on appeal is whether the limited scope agreement gave rise to a
duty to advise him about possible tort claims against third parties and the
applicable statutes of limitations. Di Renzo contends that the circuit court
correctly granted summary judgment because there was no attorney-client
relationship relating to third-party claims out of which such a duty might arise.
We agree that pursuant to the terms of the limited scope retention agreement,
whereby the parties specifically and contractually disclaimed an attorney-client
relationship as to third-party claims, and because Freude has placed no material
facts in dispute, his legal malpractice claim is precluded as a matter of law. We
decline to override that contractual agreement on public policy grounds. We thus
affirm the grant of summary judgment to Di Renzo.

BACKGROUND

I. The Retention Agreement

¶2 On April 2, 2015, Freude was employed as a security guard by
Allied Barton Security. He alleges that, while working at a Nestle USA, Inc.
facility, he slipped and fell on water in a restroom. A cleaning service maintained
the restroom.

2
No. 2023AP764

¶3 On December 30, 2016, Freude signed a two-page retention
agreement with Di Renzo entitled Worker’s Compensation Representation
Agreement (Retention Agreement). The agreement provided that Freude engaged
the firm “to represent me and to perform all services which they deem necessary to
such representation with respect to my worker’s compensation claim.”1

¶4 In addition to specifying the particular claim for which Di Renzo
agreed to represent Freude, the Retention Agreement also expressly described
what it did not cover:

I understand that the firm is being employed solely to
prosecute a worker’s compensation claim on my behalf and
that the firm has not been employed to bring actions against
third parties as a result of my injury, the date of which is set
forth above, nor is the firm being employed to prosecute
any employment related claims arising under state or
federal law. I acknowledge and understand that if the firm
was to be employed to provide representation as to non-
worker’s compensation claims that a separate fee
arrangement shall need [to] be agreed upon to compensate
the firm for prosecution of such other claims.

Freude confirmed that he was “given an opportunity to read through [the Retention
Agreement] before [he] signed it.”

1
The Retention Agreement repeatedly refers to “my worker’s compensation
claim,” including in language specifying the scope of the representation, a provision
obligating Freude to pay “expenses and charges” related to the claim, and language
identifying circumstances in which Di Renzo’s representation of Freude might end. In
addition, the agreement uses the phrase “the worker’s compensation claim” in a
paragraph describing the compensation to which Di Renzo would be entitled if Freude
received an award of worker’s compensation benefits.

3
No. 2023AP764

¶5 In October 2017, Freude and Di Renzo entered into a separate fee
agreement related to Di Renzo’s representation of Freude with respect to a social
security disability benefit claim.

¶6 After Di Renzo withdrew from representation in December 2017,
Freude retained another attorney who settled the worker’s compensation claim.

II. Circuit Court Proceedings

¶7 In September 2020, Freude filed this legal malpractice action
alleging that Di Renzo “learned that third-party claims could be made” against
Nestle and the cleaning company “[d]uring [its] investigation of the workers
compensation and social security disability claims” but negligently failed to advise
him that he might be able to assert those claims and the statute of limitations for
such claims. Di Renzo moved for summary judgment arguing, among other
things, that the Retention Agreement’s limited scope meant that Di Renzo did not
have a duty to investigate or advise Freude about third-party claims. The circuit
court agreed, finding no dispute of material fact as to what the Retention
Agreement covered and what it carved out and dismissed Freude’s legal
malpractice lawsuit.

DISCUSSION

I. Applicable Law and Standard of Review

¶8 “We independently review a grant of summary judgment, using the
same methodology as the circuit court.” Habel v. Estate of Capelli, 2020 WI App
15, ¶7, 391 Wis. 2d 399, 941 N.W.2d 858. Summary judgment “shall be rendered
if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any

4
No. 2023AP764

material fact and that the moving party is entitled to a judgment as a matter of
law.” WIS. STAT. § 802.08(2) (2021-22).2

¶9 The parties agree that Freude must establish the existence of an
attorney-client relationship to pursue a legal malpractice action. See
Skindzelewski v. Smith, 2020 WI 57, ¶9, 392 Wis. 2d 117, 944 N.W.2d 575;
Lewandowski v. Continental Cas. Co., 88 Wis. 2d 271, 277, 276 N.W.2d 284
(1979) (recognizing that a plaintiff in a legal malpractice action has the burden to
establish the existence of attorney-client relationship). The parties’ arguments on
appeal require us to examine and interpret the terms of their agreement. The
interpretation of a written contract raises a question of law that we decide
independently of the circuit court. Admanco, Inc. v. 700 Stanton Drive, LLC,
2010 WI 76, ¶15, 326 Wis. 2d 586, 786 N.W.2d 759.

¶10 Whether public policy renders a contract void or unenforceable is
also a question of law that we decide independently. See Jezeski v. Jezeski, 2009
WI App 8, ¶¶10-11, 316 Wis. 2d 178, 763 N.W.2d 176 (2008).

2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

5
No. 2023AP764

II. Di Renzo Did Not Have a Duty to Advise Freude Regarding
Third-Party Claims Because the Retention Agreement Expressly
Disclaims an Attorney-Client Relationship for Such Claims.

¶11 “[T]he rules governing contract formation determine whether [an
attorney-client relationship] has been created.” Security Bank v. Klicker, 142
Wis. 2d 289, 295, 418 N.W.2d 27 (Ct. App. 1987). “Attorneys have a burden to
clearly draft their legal fee agreements.” Ziolkowski Patent Sols. Grp., S.C. v.
Great Lakes Dart Mfg., Inc., 2011 WI App 11, ¶13, 331 Wis. 2d 230, 794
N.W.2d 253.3 Here, the parties do not dispute that the Retention Agreement gave
rise to an attorney-client relationship between Freude and Di Renzo. Moreover,
Freude does not challenge the validity of the agreement or contend that it is
unreasonable.4 He does not develop an argument based on a lack of informed

3
See Gorton v. Hostak, Henzl & Bichler, S.C., 217 Wis. 2d 493, 508, 577 N.W.2d 617
(1998) (“Unlike attorneys, clients may not possess the legal acumen or experience necessary to
understand the potential ramifications that a particular fee agreement may have on a lawsuit.”).
4
Limited scope representation is recognized in the Wisconsin Rules of Professional
Conduct. Supreme Court Rule 20:1.2, entitled “Scope of representation and allocation of
authority between lawyer and client,” provides in relevant part:

(c) A lawyer may limit the scope of representation if the
limitation is reasonable under the circumstances and the client
gives informed consent….

....

(2) If the client gives informed consent in writing signed by
the client, there shall be a presumption that:

a. the representation is limited to the lawyer and the
services described in the writing, and

b. the lawyer does not represent the client generally or in
matters other than those identified in the writing.

The Preamble to the Rules of Professional Conduct states that the rules “are not designed to be a
basis for civil liability” and that “[v]iolation of a rule should not itself give rise to a cause of
action against a lawyer nor should it create any presumption in such a case that a legal duty has
(continued)

6
No. 2023AP764

consent. He does not assert any ground to invalidate the agreement, such as
misrepresentation, mistake, unconscionability, duress, undue influence, or
incapacity.

¶12 In addition, the parties agree that the Retention Agreement
permissibly sets forth the scope of their attorney-client relationship. In construing
the agreement, our goal is “to give effect to the parties’ intentions.” Tufail v.
Midwest Hosp., LLC, 2013 WI 62, ¶25, 348 Wis. 2d 631, 833 N.W.2d 586.
“[T]he best indication of the parties’ intent is the language of the contract itself,”
which “[w]e construe … according to its plain or ordinary meaning.” Town Bank
v. City Real Est. Dev., LLC, 2010 WI 134, ¶33, 330 Wis. 2d 340, 793 N.W.2d
476. We also “consider the language of the contract as a whole, and analyze
contract clauses in context, as they are reasonably understood.” Ryan v. Ryan,
2023 WI App 21, ¶12, 407 Wis. 2d 615, 990 N.W.2d 777 (citation omitted).

¶13 In the Retention Agreement, Di Renzo and Freude agreed that the
firm was employed “solely to prosecute a worker’s compensation claim on
[Freude’s] behalf and that the firm has not been employed to bring actions against
third parties as a result of [Freude’s] injury.” Freude further agreed that he
“acknowledge[s] and understand[s] that if the firm was to be employed to provide
representation as to non-worker’s compensation claims that a separate fee
arrangement shall need [to] be agreed upon to compensate the firm for prosecution
of such other claims.” The parties agree that this language is unambiguous.
Freude also acknowledges that he had the opportunity to read the agreement.

been breached.” SCR Preamble, ¶20. However, “since the rules do establish standards of
conduct by lawyers, a lawyer’s violation of the rule may be evidence of breach of the applicable
standard of conduct.” Id. Freude does not contend that Di Renzo violated SCR 20:1.2(c).

7
No. 2023AP764

¶14 Recognizing that a legal malpractice claim must be based on an
attorney-client relationship, Freude contends Di Renzo’s limited-scope
representation gave rise to a duty to advise him about potential third-party claims
and the applicable statutes of limitations. He contends the legal obligation falls
“within the scope of [the] worker’s compensation agreement.” We reject this
argument as it directly conflicts with the limited scope of Di Renzo’s
representation as set forth in the Retention Agreement. While the worker’s
compensation statute references third-party claims, see WIS. STAT. § 102.29(1)(a),
here, the only fact submitted on summary judgment relating to the parties’ entry
into the Retention Agreement is the agreement itself.5 In that agreement, the
parties expressly agreed that the firm’s representation was limited “solely” to the
worker’s compensation claim, specifically excluded “representation as to non-
worker’s compensation claims,” and acknowledged that any such representation
would need to be addressed in a separate retainer agreement. In short, because
Di Renzo’s representation under the Retention Agreement did not extend to claims
against third parties, there is no legal relationship upon which to base a duty to
provide Freude with advice regarding such claims.

¶15 Had the agreement only identified what Di Renzo’s representation
did encompass, Freude’s argument that a duty to advise as to third-party claims
arose nonetheless might be stronger, partly because of the close association of
claims against employers and third parties in WIS. STAT. § 102.29. But by
expressly carving third-party claims out of the scope of Di Renzo’s engagement,

5
Freude testified that he did not recall anything about the signing of the Retention
Agreement.

8
No. 2023AP764

the Retention Agreement eliminates the basis for a duty to give advice as to such
claims.

¶16 The Retention Agreement’s specification as to what Di Renzo’s
limited representation did not include is also in keeping with Wisconsin ethics
guidance:

When undertaking a limited scope representation, it is
particularly important for the lawyer to clearly
communicate to the client the limits of the representation.
In most circumstances, in a limited scope representation it
will be necessary for the lawyer to inform the client what
services the lawyer will not provide to the client. This is
because the representation often is limited in a manner that
varies from what a client might typically expect, and this
information must be communicated to the client.

State Bar of Wisconsin, Wisconsin Ethics Opinion E-09-03: Communications
Concerning Attorneys’ Fees and Expenses at 3 (2020).6 While this opinion
provides ethical guidance and does not directly address the standard of care for a
legal malpractice claim, it remains noteworthy that the Retention Agreement
followed this guidance by clearly communicating to Freude that Di Renzo’s
representation was limited to the worker’s compensation claim and that the firm
was not representing him with respect to any third-party claims arising out of his
injury. That the agreement went this extra step takes on added significance
because, as Freude argues, workplace injuries frequently give rise to both claims
against employers under WIS. STAT. ch. 102 and claims against nonemployer third
parties who may bear some responsibility for an employee’s injury. Here, the
agreement notified Freude of the possibility of such third-party claims, informed

6
A copy of this opinion is available at
https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-09-03.pdf.

9
No. 2023AP764

him that Di Renzo was not representing him with respect to such claims, and
instructed him what additional step would be needed to have Di Renzo undertake
such representation.

¶17 Freude relies on two cases in which courts concluded that attorneys
who represented clients with respect to worker’s compensation claims nonetheless
had a duty to advise their clients about potential claims against third parties. In
Keef v. Widuch, 747 N.E.2d 992, 1000 (Ill. App. Ct. 2001), for example, the court
concluded that an agreement which stated only that the attorney was engaged to
prosecute a claim under Illinois’ worker’s compensation statute did not foreclose a
duty to advise as to third-party claims. “Although a representation agreement may
limit the scope of representation to a particular legal course of action,” the court
wrote, “the client must be made to understand that the course of action is not the
sole potential remedy and that there exist other courses of action that are not being
pursued.” Id. at 998. It noted that “the typical injured worker is uninformed about
the possibility of a third-party action” and thus “relies upon his workers’
compensation attorney to advise him of all the potential legal remedies.” Id.
Absent such advice, the court concluded, “the client is not informed about the
limited scope of the attorney’s representation.” Id.; see also Nichols v. Keller, 19
Cal. Rptr. 2d 601 (Cal. Ct. App. 1993) (“[E]ven when a retention is expressly
limited, … the attorney should inform the client of the limitations of the attorney’s
representation and of the possible need for other counsel.”).

¶18 These non-Wisconsin authorities are materially distinguishable from
the present case. In Keef and Nichols, the representations were limited to
pursuing worker’s compensation claims. Nothing in either case suggests that the
attorneys advised their clients of the possibility of third-party claims, in writing or
orally. By contrast, in the present case, the Retention Agreement between Freude

10
No. 2023AP764

and Di Renzo was not silent as to third-party claims; it specifically acknowledged
their possible existence, expressly excluded them from Di Renzo’s representation,
and advised Freude that a separate fee arrangement would be needed before the
firm would represent him with respect to those claims.7

¶19 Freude has not identified any case in which a legal malpractice claim
based on a specifically excluded representation survived. In contrast, our research
identified several cases holding that when a retention agreement specifically
negates the existence of an attorney-client relationship for certain work, there is no
legal duty to provide advice or services beyond what is expressly included within
the scope of representation. See, e.g., Lerner v. Laufer, 819 A.2d 471, 483 (N.J.
Super. Ct. App. Div. 2003) (explaining that what is required of an attorney “is not
to be considered in a vacuum but with reference to the type of service the attorney
undertakes to perform. [Thus], if the service is limited by consent, then the degree
of care is framed by the agreed service.” (citation omitted)).

¶20 For example, in Kohler v. Polsky, 195 N.Y.S.3d 122 (N.Y. App.
Div. 2023), an injured worker entered into a retainer agreement “which stated,
inter alia, that he retained the defendants to represent him only in relation to a
workers’ compensation claim, and not for any other claims arising from the

7
Neither the American Bar Association’s Model Rules of Professional Conduct nor the
rules of professional conduct applicable to attorneys in Illinois and California include the
rebuttable presumption present in SCR 20:1.2(c)(2) that when a client gives informed written
consent to a limited scope of representation, “the lawyer does not represent the client generally or
in matters other than those identified in the writing.” See MODEL RULES OF PRO. CONDUCT R.1.2
(AM. BAR ASS’N 2020); ILL. SUP. CT. R. 1.2 (2024); CAL. RULE OF PRO. CONDUCT 1.2 (2024).
Here, even if one looked to SCR 20:1.2(c) for guidance (because there is no contention the rule
was violated), a rebuttable presumption either would not be necessary because the retention
agreement specifically disclaimed representation as to third-party claims or would be reinforced
by the terms of the Retention Agreement.

11
No. 2023AP764

accident.” Id. at 123. The worker later filed a legal malpractice claim alleging
that the defendants did not inform him “that he had potentially meritorious
personal injury claims against certain third parties.” Id. The appellate court
affirmed a grant of summary judgment on the claim because there was no dispute
that “the acts that they allegedly failed to perform were beyond the scope of the
engagement letter” and malpractice liability could not be based on the attorney’s
failure to take action outside the scope of the engagement. Id. at 124; see also
Eichengrun v. Panasci, 202 N.Y.S.3d 569, 573 (N.Y. App. Div. 2024) (affirming
summary judgment for a law firm on claims arising out of the firm’s alleged
failure to obtain a stay pending potential appeal where the retainer agreement
“explicitly limited the legal services to be provided … to the bankruptcy
proceeding at the trial level” and “specifically excluded legal services for appeals
and work in any other action or proceeding”); Patel v. FisherBroyles, LLP, 1
N.W.3d 308, 315 (Mich. Ct. App. 2022) (holding “that when an attorney and a
client expressly limit terms of the attorney’s representation, the duty imposed on
the attorney for purposes of a legal malpractice action is limited to the agreed-
upon scope of representation”), appeal denied, 994 N.W.2d 256 (Mich. 2023).
We may look to case law from other jurisdictions in the absence of applicable
Wisconsin precedent, see State v. Harvey, 2006 WI App 26, ¶20 n.7, 289 Wis. 2d
222, 710 N.W.2d 482, and here we find the analysis in these out-of-state cases
compelling.

¶21 In sum, the Retention Agreement was not silent as to the possibility
of a third-party claim, and the limitation excluding representation was very clear.
Under the undisputed material facts of this case, the circuit court correctly
concluded that Di Renzo may not be held liable for failing to act outside the scope
of the agreement.

12
No. 2023AP764

III. Public Policy Does Not Give Rise to a Duty to Advise in This
Case.

¶22 We further reject Freude’s undeveloped invitation to recognize, as a
matter of public policy, a duty to advise clients about potential third-party claims
even though the terms of a written retainer agreement expressly exclude
representation as to such claims.8 As noted above, Wisconsin permits limited-
scope representation agreements if they are reasonable. See SCR 20:1.2. Though
Freude agrees the Retention Agreement is valid, he effectively asks this court to
override enforcement of his contractual agreement to exclude third-party claims
from Di Renzo’s representation.

¶23 Wisconsin favors enforcing a contract agreed to by competent
parties, and a court will set a contract aside “on grounds of public policy only in
cases free from doubt,” Northern States Power Co. v. National Gas Co., 2000 WI
App 30, ¶8, 232 Wis. 2d 541, 606 N.W.2d 613 (1999), such as where the contract
“violates a statute, a rule of law or public policy,” Jezeski, 316 Wis. 2d 178, ¶11.
Public policy refers to the “principle of law under which freedom of contract or
private dealings is restricted by law for the good of the community.” Merten v.
Nathan, 108 Wis. 2d 205, 213, 321 N.W.2d 173 (1982) (citation omitted). It may
be embodied in statutes, administrative rules, or common law. Rosecky v.
Schissel, 2013 WI 66, ¶¶68-69, 349 Wis. 2d 84, 833 N.W.2d 634; Northern
States, 232 Wis. 2d 541, ¶8.

¶24 Here, Freude fails to identify any statute, regulation or judicial
opinion in Wisconsin that gives rise to a public policy that would override

8
We address Freude’s public policy argument for the sake of completeness even though
he did not raise it in the summary judgment briefing before the circuit court.

13
No. 2023AP764

enforcement of the contractual terms of the parties’ attorney-client relationship.
Absent any legal authority to support Freude’s argument, we decline to create a
new public policy obligation that would override the parties’ contractual
agreement to limit the scope of representation to exclude third-party claims.9

CONCLUSION

¶25 For the reasons stated above, the circuit court correctly granted
Di Renzo’s summary judgment motion and dismissed Freude’s legal malpractice
claim. Freude has failed to establish an essential element of his claim—an
attorney-client relationship—under the parties’ limited scope agreement whereby
the law firm’s representation was limited solely to worker’s compensation claims
and expressly excluded representation with respect to third-party claims.

By the Court.—Order affirmed.

Recommended for publication in the official reports.

9
Because our decision affirms the grant of summary judgment on Freude’s legal
malpractice claim based on the terms of the Retention Agreement, we need not address
Di Renzo’s additional contentions regarding the merits of Freude’s claim. See Sweet v. Berge,
113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (we need not address other issues when one
is dispositive of the appeal).

14
No. 2023AP764(D)

¶26 GROGAN, J. (dissenting). To succeed on a claim of legal
malpractice, a plaintiff must establish: (1) the existence of an attorney-client
relationship; (2) that the attorney acted negligently; and (3) that the attorney’s
negligence caused the client’s injury. Skindzelewski v. Smith, 2020 WI 57, ¶9,
392 Wis. 2d 117, 944 N.W.2d 575. “[T]o prove causation and injury, a plaintiff
must show that ‘but for the negligence of the attorney, the client would have been
successful in the prosecution or defense of an action.’” Id. (citation omitted). In
other words, the plaintiff must “prove a case within a case”—“that, but for his
lawyer’s negligence, the civil case would have succeeded.” Id.

¶27 Pursuant to the terms of the Worker’s Compensation Representation
Agreement (Agreement), Michael Freude hired Attorney Jeffrey M. Berzowski
and his firm, Di Renzo & Bomier LLC, (collectively “Berzowski” unless
otherwise noted) to represent him in regard to a worker’s compensation claim. In
the Agreement, the parties confirmed that if Freude sought to engage Berzowski to
also represent him as to certain other types of claims, it would be necessary to
enter into an additional agreement:

I understand that the firm is being employed solely to
prosecute a worker’s compensation claim on my behalf and
that the firm has not been employed to bring actions against
third parties as a result of my injury, the date of which is set
forth above, nor is the firm being employed to prosecute
any employment related claims arising under state or
federal law. I acknowledge and understand that if the firm
was to be employed to provide representation as to
non-worker’s compensation claims that a separate fee
arrangement shall need to be agreed upon to compensate
the firm for prosecution of such other claims.
No. 2023AP764(D)

Berzowski’s representation on the worker’s compensation claim ended on
December 5, 2017, and the letter informing Freude that Berzowski was
withdrawing his representation made no mention of third-party claims and
referenced a statute of limitations only in regard to the worker’s compensation
claim. After obtaining new counsel and discovering the third-party claim statute
of limitations had run, Freude filed a legal malpractice claim against Berzowski
asserting that Berzowski knew that a third-party claim existed, that Berzowski
knew that the statute of limitations on such claims would run in the near future,
and that Berzowski negligently failed to provide Freude with this information.

¶28 The Majority, despite recognizing “that the Retention Agreement
gave rise to an attorney-client relationship,” nevertheless affirms the circuit court’s
grant of summary judgment1 in Berzowski’s favor because it concludes that only a
specific type of attorney-client relationship existed and that that relationship was in
regard to the worker’s compensation claim only. Majority, ¶¶1, 11. Thus, it says,
in light of the limited-scope agreement, there was no attorney-client relationship as
to a third-party claim, and therefore Freude, as a matter of law, could not assert a
legal malpractice action against Berzowski related to a third-party claim at all.
Majority, ¶1. In this particular context, I conclude that in entering this Agreement,
the parties entered into an attorney-client relationship, thus establishing the first

1
In granting summary judgment in Berzowski’s favor, the circuit court primarily
focused on the terms of the Agreement as of the time that it was signed. Specifically, the court
looked to “what that initial consultation would have led to; whether that initial consultation that
resulted in the retainer agreement would have given indication of a third-party injury” and
determined that the information at the time of the initial consultation was such that it would not
“have triggered a third-party case.” It therefore determined that “there is a presumption that the
implied consent or informed consent [was] done appropriately[]” and that the Agreement “did
carve out no obligation with respect to third-party claims such that there would not have been any
reasonable notice or advice on those issues.”

2
No. 2023AP764(D)

element of a legal malpractice claim, and that the role of the limited-scope
Agreement is instead more properly addressed within the context of the second
legal malpractice element—negligence.

¶29 Consideration of a limited-scope agreement in the context of the
negligence element rather than in determining whether an attorney-client
relationship existed as to a specific type of claim serves the purpose of both
acknowledging that an attorney-client relationship exists while also cabining the
negligence analysis within the context of the limited-scope agreement itself. Such
a framework protects both the client and the attorney—the client, who is reliant
upon the attorney’s skill and training, can reasonably expect the attorney to share
information he learns during the representation that may give rise to a different
type of inter-related claim, while an attorney facing a legal malpractice claim
wholly unrelated to the type of claim addressed by the limited-term agreement can
point to such an agreement in establishing he did not act negligently.2

¶30 Applying this framework here, the question of whether Berzowski
was negligent would depend on whether Berzowski, during the course of
investigating the worker’s compensation claim, knew of facts that could
potentially support a third-party claim. Given the close relationship between

2
For example, it is not entirely unlikely that an attorney hired to represent a client in
regard to a worker’s compensation matter may obtain information during that representation that
would lead the attorney to believe the client may have a viable third-party claim, whereas it is far
less likely that that same attorney would obtain information during that representation that would
suggest a possible claim for theft by contractor that is wholly unrelated to the workplace injury.
If the client at some point learned that he had a possible theft by contractor claim and asserted a
legal malpractice claim against his worker’s compensation attorney, that attorney could then point
to the limited-scope agreement to argue that he was unaware of such information because it was
unrelated to the claim he was hired to prosecute and that he could not have been negligent for
failing to provide such information.

3
No. 2023AP764(D)

worker’s compensation claims and third-party liability claims—as evidenced by
WIS. STAT. § 102.29—an attorney investigating one type of claim might become
aware of information that would support the other claim. This is particularly true
when the attorney specializes in both worker’s compensation and third-party
related claims. Under such circumstances, failing to share that information with
the client as the attorney terminates the relationship may fall on the side of
negligence—even where the parties have otherwise entered a limited-scope
agreement.

¶31 To be clear, an attorney representing a client under a limited-scope
agreement does not have an affirmative duty to investigate or bring claims that are
clearly beyond the scope of that agreement.3 However, the attorney who has
information about a third-party claim in a worker’s compensation case should not
withhold that information from a client with whom he is terminating
representation. This is particularly so where the limited-scope agreement such as
the one at issue in this case specifically references other types of potential claims.

¶32 Here, for example, while the Agreement limited Berzowski’s
representation to the worker’s compensation claim and explained that Berzowski
had “not been employed to bring actions against third parties as a result of

3
In reaching this conclusion, I reject Freude’s argument that “[a] limited scope
representation agreement for workers’ compensation cannot, as a matter of law, relieve an
attorney of his duty to investigate the potential for third-party claims and alert his client to such
claims.” (Emphasis added.) While an attorney representing a client on a worker’s compensation
claim pursuant to a limited-scope agreement such as the one at issue here may ultimately obtain
information related to a possible third-party claim—at which point an attorney may be obligated
to share that information with the client—I do not agree that an attorney operating under such an
agreement would have an affirmative duty to investigate a third-party claim if the agreement itself
specifically excluded third-party claims (or other types of claims) from the scope of
representation.

4
No. 2023AP764(D)

[Freude’s] injury,” it also specifically referenced the need for an additional
retainer should Berzowski “be employed to provide representation as to
non-worker’s compensation claims[.]” (Emphasis added.) This at least suggests
that had Berzowski become aware of information that would support other types
of claims that he would then share that information with Freude so the parties
could determine whether or not to enter into an additional agreement. In the
absence of Berzowski having shared such information, Freude could reasonably
have assumed that no such additional claim existed and therefore no additional
agreement would be necessary.4 Furthermore, the Agreement specifically stated
that Berzowski had not been hired “to bring actions against third parties”
stemming from Freude’s work-related injury. (Emphasis added.) It should go
without saying that sharing information with a client about the possible existence
of a claim is simply not the equivalent of bringing an action, particularly where an
agreement contemplates the necessity for additional agreements.

¶33 Based on the foregoing, I would therefore conclude that an
attorney-client relationship existed and that there remains a question of fact as to
whether Berzowski was negligent in failing to inform Freude about the potential
existence of a third-party claim and the corresponding statute of limitations at the
time Berzowski terminated his representation. Because I conclude a question of
fact remains, I would reverse the circuit court’s grant of summary judgment and
remand for further proceedings to determine what, if anything, Berzowski knew

4
The Majority suggests that the Agreement’s statement that Berzowski had “not been
employed to bring actions against third parties” was sufficient to apprise Freude of the possible
existence of third-party claims: “[T]he agreement notified Freude of the possibility of such
third-party claims[.]” Majority, ¶16. I disagree. With the termination of representation, any
information known to the attorney about the possible third-party claim should have been
disclosed.

5
No. 2023AP764(D)

about the possibility of a third-party claim at the time the representation ended and
whether Freude could establish the remaining elements necessary to establish legal
malpractice. Accordingly, I respectfully dissent.

6