Tuesday, March 24, 2009
Duty to non-client in legal malpractice setting?
Assume a client asks an attorney to prepare a will and discloses to the attorney the names of the beneficiaries she wants included in the will. The lawyer begins to prepare the documents but the client dies before the attorney completes the project. Because a will was not prepared for execution prior to the client's death, the estate passes through intestacy and the intended beneficiaries are affected. Assume it can be argued the attorney was negligent in handling the matter for waiting so long in getting the documents ready. Should the beneficiaries have a cause of action against the lawyer for his negligence? That is the question for the court in a new case just decided by the Supreme Court of South Carolina (available here). Some states have held that an attorney drafting a will owes a duty of care to the intended beneficiaries, even if they are not the clients of the attorney. In cases like those, it has been suggested that it is not a good idea to require privity of contract for liability. Since the attorney is being asked by the client to do something to benefit others, the law should allow those "others" to sue if the attorney breaches his or her duty of care. Also, in many cases the malpractice may not be discovered until after the client’s death. However, those cases recognize that an attorney owes a duty to a non-client intended beneficiary of an executed will where it is shown that the testator’s intent has been defeated or diminished by negligence on the part of the attorney, resulting in loss to the beneficiary. Here, the question is whether the non-client has a malpractice claim for negligent failure to draft the will in time. The Court refused to recognize the claim. Adopting the reasoning in a similar case from another jurisdiction, the Court concluded that imposing liability "would create an incentive for an attorney to exert pressure on a client to complete and execute estate planning documents summarily. Fear of liability to potential third party beneficiaries would contravene the attorney’s primary responsibility to ensure that the proposed estate plan effectuates the client’s wishes and that the client understands the available options and the legal and practical implications of whatever course of action is ultimately chosen."