Yorgan v. Durkin

2006 WI 60, 715 N.W.2d 160, 290 Wis. 2d 671, 2006 Wisc. LEXIS 352

• Court: Wisconsin Supreme Court
• Decided: June 2, 2006
• Docket: 2004AP1359
• Status: Published

Opinions

ANN WALSH BRADLEY, J.

¶ 1. Dr. Kenneth Yorgan seeks review of an unpublished court of appeals decision reversing a circuit court judgment that held Attorney Thomas Durkin liable for Yorgan's chiropractic fees, incurred by Sol Hernandez.¹ Hernandez, who was Attorney Durkin's client, signed an agreement with Dr. Yorgan directing her attorney to pay Yorgan and purporting to give a lien against any proceeds she might receive from her personal injury claim. Dr. Yorgan argues that he should be able to enforce the agreement against Attorney Durkin, who distributed the proceeds from Hernandez's claim without paying Yorgan.²

¶ 2. We determine that Dr. Yorgan may not hold Attorney Durkin liable for payment because Durkin did not sign the agreement or otherwise agree to be liable. Additionally, we determine that imposing liability on Durkin is not dictated by public policy. Finally, we determine that Yorgan is not entitled to an equitable lien enforceable against Attorney Durkin. Accordingly, we affirm the court of appeals.

I — I

¶ 3. Hernandez was involved in a car accident and received chiropractic treatment from Dr. Yorgan. At some point, Dr. Yorgan provided her with a form entitled "Authorization and Doctor's Lien" that consisted of the following terms:

I do hereby authorize Doctor Kenneth Yorgan to furnish you, my attorney, a full report of the examination, diagnosis, treatment, prognosis etc., of myself, as well as any records or information he may have regarding injuries or health problems I may have arising from a personal injury accident occurring on or about: 8-6-99.³

I hereby authorize and direct you, my attorney, to pay directly to Dr. Yorgan such sums as may be due and owing him for health services rendered to me by reason of this accident and to withhold such sums from any settlement, judgement or verdict as may be necessary to protect his interests. I further hereby give lien on my case to Dr. Yorgan against any and all proceeds of my settlement, judgement or verdict which may be paid to you, my attorney, or myself as a result of the injuries and health problems for which I have been treated or in connection thereto.

I fully understand that I am directly and fully responsible to Dr. Yorgan for all fees submitted by him for services rendered to me and that this agreement is made solely for his additional protection and in consideration of his awaiting payment. I further understand that such payment is not contingent on any settlement, judgement or verdict by which I may eventually recover said fees.

Please acknowledge this letter by signing below and returning to Dr. Yorgan. Retain one copy for your records. I have been advised that if my attorney does not wish to cooperate in protecting Dr. Yorgan's fees, he will not await payment and will require me to make payments on a current basis.

(Emphasis added.)

¶ 4. At the bottom of the form, there was a signature line for Hernandez and a signature line for her attorney. Hernandez signed the form and subsequently retained Attorney Durkin to handle a personal injury claim relating to the car accident. During the course of Durkin's representation of Hernandez, Dr. Yorgan provided Durkin with 13 pages of medical records and included a copy of the form. Durkin, however, never signed it.

¶ 5. Attorney Durkin settled Hernandez's claim and, at some point, had a telephone conversation with Dr. Yorgan in which he asked Yorgan to reduce his bill. Ultimately, Durkin distributed the settlement proceeds without paying Yorgan.

¶ 6. Dr. Yorgan apparently made at least some attempts to collect against Hernandez, but he was unsuccessful. Yorgan thus filed a small claims action against Attorney Durkin, seeking to hold Durkin liable for his failure to forward payment to Yorgan in satisfaction of Hernandez's outstanding account of $2,104.40. Durkin moved for summary judgment, asserting that he did not have actual notice of the form and that Hernandez was an indispensable party as the person responsible for the outstanding balance.

¶ 7. The circuit court ruled in favor of Dr. Yorgan. It determined that Attorney Durkin had actual notice of the form agreement and was bound by its terms to pay Yorgan. The court also determined that Hernandez, whose whereabouts were unknown, was not an indispensable party. Accordingly, the court entered judgment against Durkin.

¶ 8. Attorney Durkin appealed, and the court of appeals reversed the circuit court. It concluded that Durkin was not obligated to honor the agreement between Dr. Yorgan and Hernandez because Durkin had not acknowledged or accepted it. Dr. Yorgan petitioned for review.

¶ 9. In this case, .we must address whether Dr. Yorgan may hold Attorney Durkin liable based on the "Authorization and Doctor's Lien" agreement under either a contract or equitable lien cause of action. This requires us to examine and interpret a written instrument to determine its effect. Such an undertaking is a question of law subject to independent appellate review. See Micro-Managers, Inc. v. Gregory, 147 Wis. 2d 500, 507, 434 N.W.2d 97 (Ct. App. 1988). In addition, we must determine whether liability should otherwise be imposed on Attorney Durkin based on public policy considerations, also a question of law for this court's independent determination. See Auric v. Continental Cas. Co., 111 Wis. 2d 507, 512, 331 N.W.2d 325 (1983).

HH HH I — I

¶ 10. We begin our analysis with Riegleman v. Krieg, 2004 WI App 85, 271 Wis. 2d 798, 679 N.W.2d 857, a case in which the court of appeals examined the effect of a similar instrument under circumstances involving an attorney, a chiropractor, and the proceeds from their client/patient's personal injury claim. Riegleman, 271 Wis. 2d 798, ¶¶ 1-3, 25. There, however, the attorney had signed the instrument. Id., ¶ 2.

¶ 11. The court in Riegleman addressed whether, under those circumstances, the instrument constituted a contract that made the client/patient and his attorney jointly and severally liable. Id., ¶¶ 25, 27. It determined that the instrument was an unambiguous contract creating an assignment enforceable under contract law. Id., ¶ 36. It concluded that the attorney and the patient/client were jointly and severally liable for the chiropractor's fees. Id., ¶ 38.

¶ 12. In Riegleman, the court of appeals did not address the general assignability of a tort claim or its anticipated proceeds. We observe that the assignment of claims or rights arising under a contract has traditionally been distinguished from the assignment of claims or rights arising from a tort. See 9 Corbin on Contracts, §§ 856-57 (Interim ed. 2002); see also Restatement (2d) Contracts § 316 (1981). As a general rule, the latter are not as easily assignable as the former. 9 Corbin on Contracts, § 857, at 364; see also R. D. Hursh, Assignability of Claim for Personal Injury or Death, 40 A.L.R.2d 500, § 2 (1955).

¶ 13. The parties have not briefed the issue of the assignability of a claim or right arising from a tort. Neither the court of appeals nor the circuit court here saw fit to reach out and address the issue. Likewise, we refrain from reaching it. "We cannot serve as both advocate and judge." State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992). Rather, we will assume without deciding that the "Doctor's Lien and Authorization" is a valid assignment but conclude that Dr. Yorgan cannot enforce it against Attorney Durkin for the reasons that follow.⁴

¶ 14. Riegleman does not answer the question before us because the court in Riegleman did not address the issue of whether an attorney may be liable even though the attorney has not signed or otherwise accepted the terms of an agreement like the one here. The court's holding depended on the fact that the attorney had signed and therefore accepted the terms of the agreement. See Riegleman, 271 Wis. 2d 798, ¶¶ 27, 35, 37.⁵

¶ 15. In our view, it is significant whether the attorney has signed the agreement or otherwise accepted its terms. Here, applying basic contract principles, we determine that Attorney Durkin was not a party to the agreement and not bound by it. Dr. Yorgan had no reasonable expectation that Durkin would be bound by the agreement if he did not sign it. Likewise, Yorgan had no reasonable reliance interest in Durkin's acceptance or rejection of the agreement. This is plain from the terms of the agreement, which Dr. Yorgan, not Hernandez or Attorney Durkin, supplied.

¶ 16. Specifically, we look to the following terms of the agreement:

I fully understand that I am directly and fully responsible to Dr. Yorgan for all fees submitted by him for services rendered to me and that this agreement is made solely for his additional protection and in consideration of his awaiting payment. ...

... I have been advised that if my attorney does not wish to cooperate in protecting Dr. Yorgan's fees, he will not await payment and will require me to make payments on a current basis.

¶ 17. These terms of the agreement condition Dr. Yorgan's offer to await payment on the attorney's signature. They also indicate that Dr. Yorgan could not have reasonably expected that Hernandez's attorney would be bound by the agreement without signing it. Similarly, they show that Dr. Yorgan did not reasonably rely on the agreement as to the attorney's responsibility for payment absent an attorney signature.

¶ 18. The plain language of the agreement contemplates that Hernandez's attorney might not sign it, and the agreement reserved to Dr. Yorgan the option of effectively canceling it in that event. By its terms, Dr. Yorgan was free to require Hernandez to remain current on her account unless her attorney signed it.

¶ 19. Dr. Yorgan apparently chose not to fully enforce the terms of the agreement against Hernandez. Rather, he permitted her to accumulate an outstanding balance of over $2,000 even though her attorney never signed the agreement.

¶ 20. We also determine that Attorney Durkin cannot be deemed to have otherwise accepted the terms of the agreement under the circumstances of this case. Although he received copies of Hernandez's medical records from Dr. Yorgan, they were not consideration or an independent benefit provided by Dr. Yorgan to Dur-kin. Attorney Durkin received the records on Hernandez's behalf in the course of his representation of Hernandez. Durkin's receipt of the records cannot constitute his acceptance of the terms of the agreement or otherwise give rise to a contractual obligation running from him to Yorgan.⁶

¶ 21. In some circumstances, an attorney may agree to be contractually bound by proffering a "letter of protection." Such letters are "a common practice by which lawyers representing personal injury plaintiffs ensure clients will receive necessary medical treatment, even if unable to pay until the case is concluded." Riegleman, 271 Wis. 2d 798, ¶ 30 n.5 (citing In re Moore, 4 P.3d 664, 665 n.1 (N.M. 2000)). Use of the letter has been explained as "a document by which a lawyer notifies a medical vendor that payment will be made when the case is settled or judgment is obtained." Id. Here, Attorney Durkin was not bound either as a party to the agreement or by any other instrument such as a letter of protection.

¶ 22. In Riegleman, the court relied on four cases from two other jurisdictions. In all but one of the cases, Berkowitz v. Haigood, 606 A.2d 1157, 1158-59 (N.J. Super. Ct. Law Div. 1992), it was clear that the attorney had either signed an agreement or sent a letter of protection. See Moore, 4 P.3d at 665; Matter of Rawson, 833 P.2d 235, 238 (N.M. 1992); Romero v. Earl, 810 P.2d 808, 808-09 (N.M. 1991). There are other cases along similar lines. See Santiago v. Klosik, 404 S.E.2d 605, 606 (Ga. Ct. App. 1991); In the Matter of Allen, 802 N.E.2d 922, 924 (Ind. 2004). Our conclusion that Attorney Durkin was not bound either as a party to the agreement or by any other instrument is supported by the great weight of these authorities.⁷

¶ 23. Dr. Yorgan nonetheless argues that Attorney Durkin's duty was to follow his client's directions, which Yorgan asserts were clear under the agreement. Therefore, Yorgan asserts, Durkin is liable to him because he failed to pay Hernandez's outstanding balance according to her directions. We do not agree with Yorgan's analysis of Attorney Durkin's liability.

¶ 24. Initially we observe that it is not accurate to say that agreements such as the one here necessarily and unequivocally dictate the scope of an attorney's duty to his or her client. What the attorney's duty to the client requires in the face of such an agreement will depend on the facts of the case, including whether the attorney signed the agreement.

¶ 25. For example, if the attorney has not signed the agreement and knows that the client disputes the reasonableness of fees charged by a health care provider, the attorney may actually breach his or her duty to the client by paying the provider. However, if the attorney has signed the agreement and knows of such a dispute, the attorney may be obligated to withhold the amount of disputed funds from the client; if the attorney does not want to hold funds indefinitely, then the attorney has the option of bringing an action for declaratory judgment to seek guidance from the court. Riegleman, 271 Wis. 2d 798, ¶ 36.⁸

¶ 26. Having made that initial observation, we will assume that Dr. Yorgan is correct that Attorney Durkin's duty to Hernandez was to pay Yorgan. Even so, this does not necessarily mean that Yorgan may hold Durkin liable for breaching that duty.

¶ 27. "[T]he well established rule of law in Wisconsin is that absent fraud or certain public policy considerations, an attorney is not liable to third parties for acts committed in the exercise of his duties as an attorney." Newhouse v. Citizens Sec. Mut. Ins. Co., 176 Wis. 2d 824, 841, 501 N.W.2d 1 (1993); accord Green Spring Farms v. Kersten, 136 Wis. 2d 304, 321, 401 N.W.2d 816 (1987); Auric, 111 Wis. 2d at 512; Beauchamp v. Kemmeter, 2001 WI App 5, ¶ 7, 240 Wis. 2d 733, 738, 625 N.W.2d 297 (Ct. App. 2000).⁹

¶ 28. Here, Yorgan is not alleging or asserting fraud or collusion. Thus, we are faced with the question of whether to recognize a new type of exception to the general rule of attorney non-liability to third parties. This requires that we consider the public policy implications of such an exception. Newhouse, 176 Wis. 2d at 841; see also Auric, 111 Wis. 2d at 512.

¶ 29. There is no set list of public policy factors to consider.¹⁰ Our review of the relevant case law leads to the conclusion that we must consider the particular public policies implicated by the nature of the situation at hand. In addition, the cases suggest that the factors to consider may include (1) whether imposing liability in favor of a third party may compromise the attorney's duties to his or her client, see Green Spring Farms, 136 Wis. 2d at 329, and (2) whether the third party is aware of the potential for harm and has the obligation or ability to undertake his or her own investigation of the matter to protect himself or herself, see id. at 324; Goerke v. Vojvodich, 67 Wis. 2d 102, 107, 226 N.W.2d 211 (1975).

¶ 30. Turning to the public policies that this case implicates, we determine that, on balance, they do not dictate in favor of liability. We are mindful that agreements such as the one between Dr. Yorgan and Hernandez arguably may help to facilitate access to health care for some patients. However, we are also mindful that these same patients may need access to attorneys and courts in order to receive compensation for their injuries and otherwise vindicate their rights.

¶ 31. Allowing third-party creditors such as Dr. Yorgan to hold liable an attorney with notice of client debt, absent more, may deter attorneys from accepting personal injury cases and negatively impact injured parties' access to courts. This would be particularly true, as here, when it appears that a claim is relatively small and that the claimant's financial resources are limited. Taking a broader view than Dr. Yorgan does, we must bear in mind that it is the willingness of attorneys to take these types of cases that helps ensure compensation not only for patients who are tort victims but also for health care providers who are their creditors.

¶ 32. We see no readily discernable stopping point on attorney liability if liability is imposed for the reasons Yorgan advances. A variety of client creditors would need only send the client's attorney a copy of their agreements with the client in order to enlist the attorney as a de facto collection agent who would be required to correctly prioritize and pay client debts or risk liability. Putting attorneys in this position may compromise their duties to their clients.

¶ 33. It is not difficult to imagine a proliferation of agreements like those here, in which clients seek to give an interest in personal injury claim proceeds as security to creditors in addition to health care providers. For example, Durkin's attorney relates an instance in which a client had assigned a portion of anticipated proceeds from a personal injury claim to the client's landlord in order to avoid eviction.

¶ 34. In addition, for reasons we have already discussed, Dr. Yorgan should have known based on the plain language of the agreement that he might not be protected unless Attorney Durkin signed the agreement or took some other affirmative action. Dr. Yorgan was, or should have been, aware of the potential for harm that an unsigned agreement could create. At the same time, he had at least some ability to seek to ensure his protection by insisting on an attorney's signature on the agreement or a letter of protection.

¶ 35. We are sympathetic to Dr. Yorgan and commend him for his efforts, as described at oral argument, to serve patients who would ordinarily have difficulty affording or otherwise accessing chiropractic services. However, we must look beyond this case to the consequences that are likely to follow from the type of new exception to the general rule of attorney non-liability to third parties he asks us to impose. On balance, we think that public policy considerations weigh in favor of declining to adopt a new exception.

¶ 36. Finally, we turn to an argument made by the Wisconsin Chiropractic Association that Dr. Yorgan should be deemed to have a lien that is personally enforceable against Attorney Durkin. Specifically, the Association is arguing that Yorgan should have an equitable lien against Hernandez's settlement proceeds and enforceable against Durkin.

¶ 37. In addressing this argument, we begin by observing that the legislature has enacted very few statutory lien provisions. More specifically, and as relevant here, the statutory lien provisions for a health care provider that the legislature has enacted are limited to entities operating as a charitable institution and maintaining a hospital in this state. Wis. Stat. § 779.80.¹¹ In order for such a lien to attach to a personal injury claim or the proceeds resulting from it, the hospital must comply with detailed notice requirements. See § 779.80(2) and (3). Some states, unlike Wisconsin, have statutory lien provisions that cover a relatively broad class of health care providers in relation to services provided for personal injury claimants. See, e.g., Neb. Rev. Stat. § 52-401 (2005); Okla. Stat. tit. 42, § 46 (2005).

¶ 38. An equitable lien, in contrast, is a more general creature of the law. "The essential elements of equitable liens include (1) a debt, duty or obligation owing by one person to another[,] and (2) a res to which that obligation fastens, which can be identified or described with reasonable certainty." McIntyre v. Cox, 68 Wis. 2d 597, 602, 229 N.W.2d 613 (1975) (citations omitted).¹² In Wisconsin, the equitable lien doctrine is based on the Restatement (2d) of Restitution. See id. at 601. The Restatement provides that "[wjhere property of one person can by a proceeding in equity be reached by another as security for a claim on the ground that otherwise the former would be unjustly enriched, an equitable lien arises." Restatement (2d) of Restitution § 161 (1937); see also McIntyre, 68 Wis. 2d at 601.

¶ 39. We determine that Dr. Yorgan is not entitled to an equitable lien enforceable against Attorney Dur-kin for at least three reasons. First, it is Hernandez, not Attorney Durkin, who has been unjustly enriched at Dr. Yorgan's expense. Second, allowing for an equitable lien in this manner would seem to circumvent the general rule against attorney non-liability to third parties, undermining the public policy analysis that we must undertake before adopting a new exception to that rule.

¶ 40. Third, the imposition of an equitable lien in favor of Dr. Yorgan and against Attorney Durkin would be inconsistent with the legislature's policy choice, as reflected in the hospital lien statute: to limit lien rights to a narrow class of health care providers and to qualify those rights with detailed notice requirements. If there is to be a change in the law that has the effect of altering the scheme of health care provider liens in the personal injury context, the legislature is in the better position to make that change.

¶ 41. In addition, the parties have not fully briefed the issue of whether the future proceeds of a tort claim may constitute a res to which an equitable lien may fasten. A res to which an obligation fastens is a necessary element of an equitable lien claim. The principal case cited by the Association on this issue, however, appears to stand for the proposition that an equitable lien generally does not arise from a promise to pay an obligation from insurance proceeds that are expected to be received in the future. See Bartholomew v. Thieding, 225 Wis. 135, 138-39, 273 N.W. 468 (1937).¹³

IV

¶ 42. In sum, we determine that Dr. Yorgan may not hold Attorney Durkin liable for payment because Durkin did not sign the agreement or otherwise agree to be liable. Additionally, we determine that imposing liability on Durkin is not dictated by public policy. Finally, we determine that Yorgan is not entitled to an equitable lien enforceable against Durkin.¹⁴ Accordingly, we affirm the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

1 See Yorgan v. Durkin, No. 2004AP1359, unpublished slip op. (Wis. Ct. App. Nov. 17, 2004) (reversing the judgment of the circuit court for Racine County, Charles H. Constantine, Judge).

2 Yorgan is proceeding pro se in this case, but the Wisconsin Chiropractic Association has submitted an amicus brief. Unless otherwise indicated, we simply refer to Yorgan when discussing the arguments made by either him or the Association.

3 The accident date was hand-written on the form.

4 The proper procedure is to have an issue raised, briefed, and argued by the parties before deciding it. Nevertheless, the dissent reaches out and addresses this issue. The dissent decides the issue, comparing the case at bar to the case of D'Angelo v. Cornell Paperboard Products Co., 19 Wis. 2d 390, 396-97, 120 N.W.2d 70 (1963). In D'Angelo, this court stated that personal injury claims are assignable, subject to public policy limitations. Id. at 396-97. D'Angelo, however, is an insurance subrogation case. It involved a claim between two insurance companies after one of them had settled with the plaintiff in exchange for an assignment of rights.

We have located only two cases that cite D'Angelo for the proposition that a personal injury claim may be assignable. Those cases are also insurance subrogation cases. See American Ins. Co. v. City of Milwaukee, 51 Wis. 2d 346, 353-54, 187 N.W.2d 142 (1971); Associated Hosp. Serv., Inc. v. Milwaukee Auto. Mut. Ins. Co., 33 Wis. 2d 170, 173 n.3, 147 N.W.2d 225 (1967). The dissent is alone in asserting the relevancy of D'Angelo to the instant case. Neither the parties, the amicus, the circuit court, nor the court of appeals have found it relevant to the analysis.

The dissent apparently believes that Dr. Yorgan should be treated just like an insurance company that has a subrogation clause in its policy. The public policy implications of the dissent's -willingness to do so are significant, as our discussion in ¶¶ 30-33 of this opinion suggests.

In addition, the ramifications of extending subrogation jurisprudence in such a fashion are unexplored. For example, under the dissent's insurance-subrogation approach, must there be a hearing under Rimes v. State Farm Mutual Automobile Insurance Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982), to determine whether Hernandez has been made whole before Dr. Yorgan can collect? Under the dissent's insurance-subrogation approach, would Dr. Yorgan have been a necessary party to Hernandez's personal injury action? See Wis. Stat. § 803.03(2) (2003-04). Unlike the dissent, we think that before this court confronts the issue of the assignability of a tort claim (or its anticipated proceeds) in such a novel manner, the issue should be presented in the case and tested by adversarial briefs of the parties.

5 The Riegleman court relied, in part, on Wis. Stat. § 402.210(5), a statutory provision pertaining to assignments and found within Wisconsin's version of the Uniform Commercial Code in the chapter covering sales contracts. See Riegleman v. Krieg, 2004 WI App 85, ¶ 26, 271 Wis. 2d 798, 679 N.W.2d 857. We do not place reliance on § 402.210(5) because we question its applicability to the types of instruments at issue in Riegleman and the case at bar. See Wis. Stat. § 402.102 ("Unless the context otherwise requires, this chapter applies to transactions in goods ....").

All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.

6 We have no reason to think that the records Dr. Yorgan provided to Attorney Durkin were anything other than copies of Hernandez's pre-existing health care records, generated in the normal course of her treatment. In other words, it is not the situation here that Dr. Yorgan went uncompensated for creating an expert report or similar document at Attorney Durkin's request.

In addition, we note that we need not reach the issue of whether a health care provider's agreement to provide health care records to a patient or her representative can, by itself, constitute consideration for a contract between a health care provider and a patient or the patient's representative. See Wis. Stat. §§ 146.83 and 146.81(1)0»), (3), and (4).

7 Some of these cases are attorney discipline cases and therefore do not address attorney liability in a civil suit.

8 See also SCR 20:1.15(d) (2006). We note that the Rules of Professional Conduct for Attorneys are not determinative of an attorney's civil liability:

Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability....

SCR 20, Preamble; see also Williams v. Rexworks, Inc. 2004 WI App 228, ¶ 20, 277 Wis. 2d 495, 691 N.W.2d 897 ("[I]t is clear from the preamble, and from the lack of any authority to the contrary, that the [Rules of Professional Conduct for Attorneys] do not provide an independent basis for civil liability, and do not create any presumption that a legal duty has been breached."); Nauga, Inc. v. Westel Milwaukee Co., 216 Wis. 2d 306, 318 n.5, 576 N.W.2d 573 (Ct. App. 1998). Thus, we need not and do not address the applicability of the Rules to the circumstances here.

9 Absent fraud, it appears that the only well-established exception to the general rule of attorney non-liability to third parties arises in the estate planning context. Auric v. Continental Cas. Co., 111 Wis. 2d 507, 512, 331 N.W.2d 325 (1983) (holding that the beneficiary of a will may maintain an action against an attorney who negligently drafted or supervised the execution of the will); Wisconsin Acad. of Sciences, Arts & Letters v. First Wisconsin Nat'l Bank, 142 Wis. 2d 750, 758, 419 N.W.2d 301 (Ct. App. 1987) (applying the holding in Auric to a trust); cf. Beauchamp v. Kemmeter, 2001 WI App 5, ¶ 9, 240 Wis. 2d 733, 738, 625 N.W.2d 297 (Ct. App. 2000) (holding that a third party's cause of action under Auric is limited to situations in which the third party is named in an executed or unexecuted will or similar estate planning document).

10 The court in Auric, in addressing liability in will beneficiary suits against attorneys, adopted a five-factor test used in other jurisdictions. The factors are "the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury, and the policy of preventing future harm." Auric, 111 Wis. 2d at 514 (quoting Lucas v. Hamm, 364 P.2d 685, 687 (Cal. 1961)). The court subsequently explained in Green Spring Farms v. Kersten, 136 Wis. 2d 304, 326-27, 401 N.W.2d 816 (1987), that the application of this test is restricted to the estate planning context.

11 Among the few statutory lien provisions enacted by the legislature are those for attorney's fees. See Wis. Stat. §§ 757.36, 757.37, and 757.38; see also Stasey v. Stasey, 168 Wis. 2d 37, 53, 483 N.W.2d 221 (1992).

12 The Association states that there are three elements for an equitable hen as follows: "The necessary elements of an equitable lien are [1] 'a debt, duty or obligation owing by one person to another' and [2] a 'res to which that obligation fastens'; [3] they arise 'from written contracts showing an intention to charge some particular property with the payment of a debt.'" O'Connell v. O'Connell, 2005 WI App 51, ¶ 13, 279 Wis. 2d 406, 694 N.W.2d 429 (quoting McIntyre v. Cox, 68 Wis. 2d 597, 602, 229 N.W.2d 613 (1975)). The formulation of the elements is not important for purposes of this case.

13 Our research into Wisconsin law leaves unclear whether the anticipated proceeds of a tort claim may constitute a res to which an equitable lien may fasten. See O'Connell, 279 Wis. 2d 406, ¶ 16 n.10 (explaining that no equitable lien was created in the case of McIntyre because the claimant had an interest in proceeds, not land, and because no debt existed until the property was sold). Yet, the existence of such a res is a necessary ingredient to the dissent. We note that essentially all of the Wisconsin cases cited by the dissent in support of its equitable lien analysis involve real estate. See generally In re Stoffregen, 206 B.R. 939 (Bankr. E.D. Wis. 1997); Rock River Lumber Corp. v. Universal Mortgage Corp., 82 Wis. 2d 235, 262 N.W.2d 114 (1978); Carefree Homes, Inc. v. Production Credit Ass'n, 81 Wis. 2d 541, 260 N.W.2d 759 (1978); McIntyre, 68 Wis. 2d 597; Citizens Loan & Trust Co. v. Witte, 110 Wis. 545, 86 N.W. 173 (1901); O'Connell, 279 Wis. 2d 406.

14 Having made these determinations, we need not reach Attorney Durkin's argument that the circuit court should have dismissed the case because Hernandez was an indispensable party.