Olfe v. Gordon
93 Wis. 2d 173, 286 N.W.2d 573 (1980)
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Rule of Law:
In a legal malpractice action, expert testimony is not required to establish the standard of care or a deviation therefrom if the attorney's alleged negligence consists of a failure to follow the client's explicit instructions, as this conduct can be evaluated by a jury based on principles of agency law.
Facts:
- In 1971, Frieda Olfe, a widow, verbally agreed to sell her real estate to Elmer J. Demman for $87,000.
- Olfe hired attorney Robert N. Gordon to represent her in the transaction.
- Olfe explicitly and repeatedly instructed Gordon that she wanted a first mortgage on the property to secure the unpaid balance of the purchase price.
- At the meeting to sign the offer to purchase, Gordon was accompanied by his law partner, C. J. Schloemer.
- Before signing, Olfe asked if the document was for a second mortgage. Gordon remained silent while Schloemer replied, 'It is second only to cost of construction.'
- Relying on her attorneys, Olfe signed the offer to purchase without reading it, believing she was getting a first mortgage on her land and home.
- The final transaction resulted in Olfe holding a second mortgage, subordinate to a large construction loan Demman obtained from Continental Savings and Loan.
- Demman defaulted on payments to Olfe, and Continental Savings and Loan foreclosed on its first mortgage, extinguishing Olfe's security interest in the property.
Procedural Posture:
- Frieda Olfe sued her attorney, Robert N. Gordon, and his professional liability insurer in a Wisconsin trial court for legal malpractice.
- The case was tried before a jury.
- At the close of Olfe's evidence, the defendants moved for dismissal on the ground of insufficiency of the evidence.
- The trial court granted the motion to dismiss, ruling that Olfe had failed to establish a prima facie case because she did not present expert testimony regarding the standard of care for an attorney.
- A judgment was entered in favor of the defendants.
- Olfe, as plaintiff-appellant, appealed the trial court's judgment to the Supreme Court of Wisconsin.
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Issue:
In a legal malpractice action based on an attorney's failure to follow a client's explicit instructions, is expert testimony required to establish the attorney's standard of care and breach of that standard?
Opinions:
Majority - William G. Callow, J.
No. Expert testimony is not required to establish an attorney's standard of care when the alleged negligence is a failure to follow a client's explicit instructions. The court analogized to medical malpractice, where an exception to the expert testimony requirement exists for matters within the common knowledge and comprehension of laypersons. An attorney's failure to follow a client's instructions is not a matter of specialized legal expertise but a breach of the duty an agent owes to a principal. This relationship and its duties are governed by the law of agency, which a jury is competent to understand and apply without expert guidance. Olfe's claim was not that Gordon lacked legal skill, but that he disregarded her specific instructions to secure a first mortgage, a claim rooted in agency principles that does not require an expert to explain.
Analysis:
This decision carves out a significant 'common knowledge' exception to the general rule requiring expert testimony in legal malpractice cases. By framing the failure to follow client instructions as a breach of an agent's duty rather than a deviation from a professional standard of care, the court lowers a significant procedural and financial barrier for plaintiffs. This precedent makes it easier for clients to bring malpractice claims for certain types of clear-cut errors without needing to hire an expensive expert witness. It also reinforces the principle that a client's reliance on their attorney to carry out specific instructions is reasonable and can overcome defenses like contributory negligence for failing to read or understand complex legal documents.
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