How to sue your lawyer in Wisconsin.

Legal malpractice claims that sound in tort fall under Wis. Stat. § 893.53, which covers injury "to the character or rights of another, not arising on contract" (Acharya v. Carroll, 152 Wis. 2d 330 (Ct. App. 1989)). 2017 Wisconsin Act 235 changed that statute of limitations from six years to three, effective April 5, 2018. In Wisconsin, a tort claim for legal malpractice must be filed within 3 years after it accrues under Wis. Stat. § 893.53. Claims that accrued before the change may raise questions about which period applies, so get advice quickly if yours is an older claim.

A separate six-year statute, Wis. Stat. § 893.43, covers actions "upon any contract, obligation, or liability." Whether a particular malpractice claim can be framed as a contract claim depends on its facts; Wisconsin courts have said deficient performance of a contract does not by itself create a tort claim, and the reverse question should be analyzed by a lawyer.

Discovery rule

Wisconsin applies the discovery rule. In Hennekens v. Hoerl, 160 Wis. 2d 144, 465 N.W.2d 812 (1991), the Wisconsin Supreme Court held that a malpractice claim does not accrue until the client has suffered actual damage and knows, or with reasonable diligence should have discovered, the injury, its nature, its cause, and the identity of the responsible defendant. In Wisconsin, a client can suffer actual damage from a lawyer's error before losing any money, and a clear warning, such as a demand letter, can start the clock.

Continuous representation and repose

We did not find a Wisconsin appellate decision adopting the continuous representation rule for lawyers; it appears only in a dissent in Hennekens. Treat it as unavailable. Wisconsin has no separate statute of repose for legal malpractice. Compare states on the deadline table.

Wisconsin courts list four elements: (1) a lawyer-client relationship existed, (2) the lawyer committed acts or omissions constituting negligence, (3) the negligence caused the client injury, and (4) the nature and extent of the injury. The Court of Appeals restated them in Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721. Causation usually requires the case within a case; see our explainer.

In Olfe v. Gordon, 93 Wis. 2d 173 (1980), the Wisconsin Supreme Court adopted the general rule that expert testimony is required to establish the standard of care for a lawyer and the departure from it, with an exception where a jury can evaluate the conduct without one. Olfe itself fit the exception: the claim was that the lawyer ignored the client's specific instructions, which a jury could judge under ordinary agency principles. Most cases still need an expert witness; see our expert witness guide.

Wisconsin does not require a certificate of merit for suits against lawyers.

In Hicks v. Nunnery, 2002 WI App 87, a client whose conviction had been reversed for ineffective assistance won a malpractice verdict, but the Court of Appeals reversed and ordered a new trial on one issue: his innocence. In Wisconsin, public policy requires a former criminal defendant suing a defense lawyer to prove that he or she was actually innocent of the charges of conviction. Innocence is an added element, not a substitute for proving the lawyer's negligence changed the outcome. Hicks also held that emotional distress damages do not convert a malpractice claim into a personal injury claim with a shorter deadline. See criminal defense malpractice.

Fee Arbitration Program

The State Bar of Wisconsin's Fee Arbitration Program resolves disputes over legal fees and costs outside court. Both sides must agree to participate unless the representation agreement or the Office of Lawyer Regulation requires it, and the arbitration is binding with limited appeal rights under Wis. Stat. ch. 788. It does not handle complaints about case outcome or quality of work. Each side pays a nonrefundable fee of $35 for disputes under $5,000, $70 for $5,001 to $20,000, and $150 for disputes over $20,000. See fee dispute arbitration.

Wisconsin Lawyers' Fund for Client Protection

The Wisconsin Supreme Court created the Lawyers' Fund for Client Protection in 1981 to reimburse clients who lose money through a lawyer's dishonest conduct, such as a lawyer who took fees without doing the work, stole from a trust or estate, or disappeared. Under SCR 12, the fund's committee sets the maximum reimbursement by rule; we did not find a published current cap, so ask the fund (WLFCP@wisbar.org). See how to get money back from a client protection fund.

Grievances about Wisconsin lawyers go to the Office of Lawyer Regulation, the Wisconsin Supreme Court's agency for lawyer discipline. A grievance can lead to discipline, but it does not pay you damages.

A Wisconsin grievance cannot award compensation for a lost case, and it does not stop the 3-year malpractice clock. For the differences, read malpractice lawsuit vs. bar complaint.

Wisconsin does not require lawyers to carry malpractice insurance, and we did not verify a rule requiring disclosure to clients. Ask your lawyer directly; see does your lawyer have malpractice insurance.

Find the first date you had reason to know something went wrong, such as a demand letter, an adverse ruling, or a new lawyer's warning; that date may start your three years. Request your client file (how to get it), and keep bill disputes on the fee arbitration track.

1. Write a one-page timeline: when you hired the lawyer, what went wrong, when you learned of it, and when the lawyer stopped working on the matter.
2. Collect the engagement letter, bills, emails, texts, and court papers. Do not rely on the lawyer to keep them for you.
3. Separate money problems from outcome problems. A dispute over the bill or missing funds may belong with the Fee Arbitration Program or the Lawyers' Fund for Client Protection, not in a lawsuit.
4. Estimate what the mistake actually cost you. A malpractice case has to prove real, measurable loss, and it must be worth the cost of experts.
5. Talk to an independent attorney who handles legal malpractice claims in Wisconsin well before the three years run out. Many take these cases on a contingency fee; see do legal malpractice lawyers work on contingency.

If you think your lawyer's mistake cost you, a free case review takes about two minutes.