¶ 74. {concurring). I agree with the majority that there was insufficient *284evidence to present a punitive damages question to the jury. I also agree that the circuit court did not err in dismissing Berner's breach of fiduciary duty claim. Unlike the majority, however, the circuit court based its determination on an insufficiency of evidence and not on the majority's erroneous interpretation of what constitutes a transaction.
¶ 75. I write separately because the majority narrows the attorney discipline rule that serves as a basis for its opinion. In interpreting SCR 20:1.8(a) (Conflict of interest: prohibited transactions), the majority (1) sub silencio alters the text of SCR 20:1.8(a); (2) adds a requirement that transactions involve reciprocal activity; and (3) ignores other language set forth in the rule. I am particularly concerned because the majority's narrowing of the rule here has implications for future lawyer discipline cases.
I
¶ 76. The majority determines that Krug did not breach his fiduciary duty to Berner. It reaches that conclusion by reasoning that the transaction (the settlement agreement) was between Berner and Dairy Source and not between Berner and Krug. It next concludes that there is no evidence that the settlement "embodies reciprocal activity affecting Berner and Krug." Id., ¶ 51.
¶ 77. The analysis of the majority goes off track in its discussion of the transaction when it alters the text of SCR 20:1.8(a) that serves as a foundation for its opinion. It fails to quote the actual text of the rule, which provides as follows: "A lawyer shall not enter into a business transaction with a client or knowingly ac*285quire an ownership, possessory, security or other pecuniary interest adverse to a client... SCR 20:l:8(a) (emphasis added).
¶ 78. Failing to quote the actual text allows the majority to alter the language of the rule. Although it initially states that there may be a breach of fiduciary duty when an attorney "enters into a transaction with his client," majority op., ¶ 41 (emphasis added), its analysis and conclusions regarding the rule concern only whether the settlement agreement was a "transaction between Berner and Krug." Id., ¶ 43 (emphasis added).1
• ¶ 42: "Berner has failed to prove that the settlement between Berner and Dairy Source constitutes a 'transaction' between Krug and Berner."
• ¶ 43: "In sum, there is nothing in the record to demonstrate that Berner's settlement with Dairy Source ... was a transaction between Berner and Krug."
• ¶ 44: "That the settlement was not an attorney-client transaction is even more apparent upon review of those occasions when we have evaluated actual transactions between attorneys and clients."
• ¶ 50: "[T]he Berner-Dairy Source settlement is patently different from transactions between attorneys and clients ...."
*286• ¶ 51: "The settlement negotiation that resulted in the settlement was a transaction between Berner and Dairy Source, not between Berner and Krug."
• ¶ 54: "[Tjhe settlement was not a transaction between Berner and Krug. ..."
(Emphasis added.)
¶ 79. Krug appears to have entered a transaction, which was also entered by Berner. Both Krug and Berner signed the settlement agreement. Although the settlement agreement was not between Krug and Berner, Krug entered the transaction with Berner. In effect, the majority sub silencio alters the text of this attorney discipline rule and appears to limit the prohibition to only those situations where the transaction is between the attorney and client.
¶ 80. The significance of the majority's misstep is that it narrows the application of SCR 20:1.8(a). The word "between" means that two parties are involved whereas the word "with" encompasses an unlimited number of parties.
¶ 81. By altering the text of the rule, the majority appears to apply this conflicts of interest prohibition only to situations where there is a transaction between a lawyer and a client. The result of such a narrow application is that it may leave clients unprotected and lawyers unregulated in situations where multiple parties are involved and actual conflicts of interest exist.
r — 1 1 — 1
¶ 82. Additionally, the majority narrows SCR 20:1.8(a) by adding a new requirement. It maintains that for an attorney to enter a transaction with a client, *287there must be "reciprocal activity," majority op., ¶ 51, and some "giving up of an asset by the client and a taking of the asset by the attorney." Id., ¶ 48. Certainly such cases constitute transactions. However, as the majority notes, this court in Armstrong v. Morrow stated that it is "incumbent upon the attorney... to show affirmatively either that he paid an adequate consideration for the property, or that a gratuity was intended and that no advantage was taken of the confidential relations existing between the attorney and his client to obtain it." 166 Wis. 1, 163 N.W. 179 (1917) (emphasis added); majority op., ¶ 47. A gratuity may involve giving without getting something in return.
¶ 83. The majority recognizes that the settlement agreement was a transaction. Majority op., ¶ 47. However, it fails to acknowledge that it is also a transaction from which Krug received a substantial benefit: indemnification. The benefit is one that Krug pursued. He indicated to the Kneubuehls that he would seek indemnification, even going so far as to prepare a legal memorandum arguing that Berner should indemnify him.
¶ 84. The majority maintains that "Berner gave up nothing to Krug when it agreed to pay Dairy Source $1.35 million as settlement." Majority op., ¶ 51. Even if that is true, it is not dispositive.
¶ 85. What matters is that Berner lost an opportunity to pay less to Dairy Source because Krug's indemnification was in the settlement agreement. Krug benefited, but did not give anything in exchange — it was in essence a gratuity from Berner to Krug. Because Berner did not know how Krug's indemnification came to be included in the agreement, id., ¶ 28, there is no reason to think the gratuity was intended.
*288rH HH 1 — I
¶ 86. Another way in which the majority narrows the rule is by failing to address all of the language in SCR 20:1.8(a). The rule does not refer only to transactions. Rather, it also requires precautions when attorneys "knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client." By seeking and receiving indemnification, Krug knowingly acquired a pecuniary interest in the settlement agreement. That interest is adverse to Berner.
¶ 87. Berner requested that Krug pay $200,000 toward the settlement, although Krug refused to do so. More importantly, the agreement to indemnify Krug must have been worth something to Dairy Source, such that Berner had to pay more for the settlement by including Krug. Otherwise, Dairy Source agreed to the indemnification gratuitously — a "free lunch" for Berner and Krug. No such thing.
IV
¶ 88. I am particularly concerned about the repercussions of the majority's narrowing of the rule. The supreme court rule used by the majority is not confined to cases involving breach of fiduciary duty. Rather the rule applied by the majority today is part of the Code of Professional Responsibility. The Code serves as the guidepost of our lawyer disciplinary system. By narrowing the scope of the rule, the majority concurrently limits the responsibility of lawyers and narrows the protection afforded to clients.
¶ 89. The rule also serves as a guide for lawyer self-regulation. Does the majority opinion signal that it is proper for lawyers to enter transactions with clients, so long as the transaction is not between the lawyer and client? Does the majority opinion indicate that gratuity *289given by clients to lawyers are beyond the scope of lawyer regulation because there is no "reciprocal activity"? Is it now the case that lawyers may knowingly acquire pecuniary interests adverse to their clients so long as there is no transaction?
V
¶ 90. I believe that the settlement agreement was a transaction that Krug entered with Berner, even though it was not a transaction between Krug and Berner. The indemnification was a gratuity that was apparently unintended, and the fact that there was no reciprocal activity is irrelevant. By receiving indemnification, Krug received a pecuniary interest adverse to Berner, his client. Thus, because Krug took none of the precautions outlined in SCR 20:1.8(a),2 Berner's breach of fiduciary duty claim should not have been dismissed on the ground that there was no breach.3
*290¶ 91. Although I disagree with the majority regarding whether there was a breach of fiduciary duty in this case, I agree that the circuit court did not err in dismissing the breach of fiduciary duty claim. The circuit court dismissed the claim on the ground that Berner failed to produce sufficient evidence that it had paid more for the settlement because of the breach. The court of appeals affirmed the dismissal on the ground that Berner presented no credible evidence that it was harmed. Berner Cheese Corp. v. Krug, No. 2005AP1527, unpublished slip op., ¶ 23 (Wis. Ct. App. Dec. 5, 2006).
¶ 92. The majority purports to follow the same course, setting forth a standard of review based on sufficiency of evidence. Majority op., ¶ 36. However, it does not stick with that standard. Instead it reviews the legal question of what constitutes a transaction in a breach of fiduciary duty cause of action. Id., ¶¶ 40-50.
¶ 93. I would stick to a review of the question presented by the decisions of the circuit court and court of appeals in this regard. The circuit court determined that Berner has not provided evidence that it paid more for the settlement to include indemnification for Krug. Applying the correct standard of review I conclude that the circuit court's determination of insufficient evidence of damages is not clearly erroneous. See Weiss v. United Fire and Cas. Co., 197 Wis. 2d 365, 388, 541 N.W.2d 753 (1995).4 I therefore respectfully concur.
*291¶ 94. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice LOUIS B. BUTLER, JR. join this concurrence.
The majority also uses four cases to support its use of "between": In re Disciplinary Proceedings Against Peckham, 2000 WI 17, 233 Wis. 2d 28, 606 N.W.2d 170; Armstrong v. Morrow, 166 Wis. 1, 163 N.W. 179 (1917); In re Smith, 572 N.E.2d 1280 (Ind. 1991); and Duggan v. Gonsalves, 838 N.E.2d 614 (Mass. App. Ct. 2005). However, not one of the cases uses "between." Consistent with the text of SCR 20:1.8(a), they all use the word "with."
Those safeguards are:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
SCR 20:1.8(a).
Berner argues that Krug's transaction with Berner gives rise to a presumption of undue influence in the transaction, and that Krug has failed to prove that the transaction was not the product of undue influence. Even if Berner is correct about this *290presumption, it does not demonstrate that the attorney has the burden of showing that the client suffered no damages as a result of the breach of fiduciary duty and undue influence. Thus, while I agree that there was a breach, Berner has not proven that it can proceed before providing evidence that the breach caused damages.
The elements for a claim of breach of fiduciary duty are: (1) the defendant had a fiduciary duty; (2) the defendant *291breached that duty; and (3) the breach of duty caused injury to the plaintiff. Reget v. Paige, 2001 WI App 73, ¶ 12, 242 Wis. 2d 278, 626 N.W.2d 302. Rather than addressing the second element, as the majority does, I would decide the case based on the third element alone.