Tensfeldt v. Haberman
319 Wis. 2d 329, 2009 WI 77, 768 N.W.2d 641 (2009)
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Rule of Law:
An attorney who knowingly assists a client in violating an enforceable court judgment by drafting legal documents to that effect is liable for aiding and abetting an unlawful act. The attorney is not protected by qualified immunity or the good faith advice privilege in such circumstances.
Facts:
- In 1974, Robert Tensfeldt and his first wife, Ruth, divorced. A stipulation incorporated into the divorce judgment required Robert to execute and maintain a will leaving at least two-thirds of his net estate to their three children.
- In 1975, Robert married his second wife, Constance.
- In 1978, Robert executed a will that complied with the divorce judgment.
- In 1980, Robert retained Attorney LaBudde for estate planning and provided him with a copy of the divorce judgment.
- LaBudde advised Robert that he could comply with the judgment, negotiate with his children, or ignore it and risk a future challenge. Robert chose to ignore the judgment.
- In 1981, LaBudde drafted an estate plan for Robert that did not comply with the divorce judgment's requirement.
- Between 1981 and 1992, LaBudde drafted a series of revised estate plans for Robert, none of which complied with the judgment. The 1992 plan was in effect when Robert died in 2000.
- In 1999, another attorney, Haberman, reviewed the 1992 plan with Robert, who decided to make no changes. Haberman negligently failed to advise Robert about a new Florida law impacting his estate.
Procedural Posture:
- The Tensfeldt children sued Attorneys LaBudde and Haberman in Wisconsin circuit court for intentional torts, including aiding and abetting, and negligence.
- All parties filed cross-motions for summary judgment.
- The circuit court granted summary judgment for the children on the aiding and abetting claim against LaBudde, ordering a trial on damages.
- The circuit court denied LaBudde's motion to dismiss the negligence and civil conspiracy claims against him.
- The circuit court granted summary judgment for Attorney Haberman, dismissing all claims against him.
- The children appealed the dismissal of claims against Haberman, and LaBudde cross-appealed the rulings against him to the court of appeals.
- The court of appeals certified the entire case to the Supreme Court of Wisconsin.
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Issue:
Does an attorney commit the tort of intentionally aiding and abetting a client's unlawful act by knowingly drafting an estate plan that violates an enforceable divorce judgment?
Opinions:
Majority - Justice Bradley
Yes, an attorney who knowingly drafts an estate plan that violates an enforceable divorce judgment is liable for intentionally aiding and abetting a client's unlawful act. The divorce judgment was enforceable because although a court cannot unilaterally order property division for adult children, it can incorporate the parties' voluntary stipulation to that effect into its judgment, as occurred here. A court judgment, even if believed to be erroneous, must be obeyed unless it is modified, appealed, or issued by a court lacking jurisdiction; violating it constitutes an unlawful act. Qualified immunity does not protect an attorney who assists a client in committing a tortious act to obtain something to which the client is not legally entitled. The good faith advice privilege, which pertains to advising a client to breach a contract, does not apply where an attorney actively drafts instruments to violate a court judgment.
Concurring-in-part-and-dissenting-in-part - Justice Roggensack
No, an attorney is not liable for aiding and abetting because the client's underlying act of violating the divorce judgment was not unlawful. The divorce court in 1974 lacked the subject matter jurisdiction to order a property division for the benefit of adult children, as statutes only permitted division 'between the parties.' A judgment entered without subject matter jurisdiction is void and can be lawfully ignored. Therefore, LaBudde did not aid an 'unlawful act.' Furthermore, LaBudde is protected by qualified immunity because the enforceability of the judgment was, at a minimum, 'fairly debatable in the law,' especially given prior case law. Finally, even if the judgment were valid, the 20-year statute of repose on enforcing judgments had expired before Robert's death, rendering it unenforceable.
Analysis:
This decision solidifies the principle that an attorney's duty to a client does not include assisting in the violation of a court order. It narrows the scope of attorney immunity by distinguishing between advising on debatable legal positions and actively implementing a client's decision to commit an unlawful act. The ruling creates a clear boundary, holding that the professional shield of immunity falls away when an attorney becomes an instrument in defying a court's authority. This precedent will compel estate planners and other attorneys to be more cautious when a client's wishes conflict with existing legal obligations imposed by a judgment, reinforcing the hierarchy of court orders over client directives.
