Concept
The Duty Threshold
Lawyer's duty and standard of care to nonclients
Lawyer Duty to Nonclients
The Duty Threshold
A legal malpractice claim is a negligence claim against a lawyer, so the plaintiff must prove the four elements of any negligence case: a duty of care, breach of that duty, proximate causation, and damages.1 The lawyer's version of the claim departs from ordinary negligence at the first element. In most cases a lawyer's duty of care runs only to those with whom the lawyer is in privity, and the duty typically is established by proving an attorney-client relationship.2 Because the elements run in order, a plaintiff who fails on duty never reaches breach, causation, or damages, and the lawyer never has to defend the quality of the work.
This chapter concentrates on the first two steps: whether a duty exists, with special attention to plaintiffs who never hired the lawyer, and the standard that measures breach once a duty is established.
Duty gets the early emphasis because it is where a nonclient's claim usually ends. Nonclients have a harder time than clients holding lawyers accountable for their losses, and the explanation concerns legal duty.3 When no attorney-client relationship exists, a lawyer owes no duty of reasonable care except in two narrow cases: the lawyer invites a nonclient to rely on the lawyer's opinion or legal services, or the plaintiff is an intended beneficiary of the lawyer's service to the client.4 A lawyer who gives a lender an opinion letter certifying that the lawyer found no liens on the borrower-client's collateral has invited the lender's reliance, for example. Later sections develop both exceptions.5
Courts discuss this default in the language of privity. In legal malpractice, privity means that an attorney-client relationship existed between the defendant lawyer and the plaintiff, or the plaintiff's predecessor in interest, and that the lawyer therefore owed the plaintiff a broad array of legally enforceable obligations.6 The word names the relationship, not a piece of paper. Receiving a lawyer's work product does not make someone a client, because a relationship, whether it arises by agreement or by mistake, requires a request for representation.7 Whether a relationship exists can itself be a question of fact. In Togstad v. Vesely, Otto, Miller & Keefe, a woman consulted a lawyer about a possible medical malpractice claim arising from her husband's injury and relied on what he told her, and a client-lawyer relationship could be found.8 Courts also must sometimes decide who the client was in the first place. In Safeway Managing General Agency, Inc. v. Clark & Gamble, an insurer that had retained attorneys to defend its insured was held not to be a client, so its claim was not one for malpractice.9
Students who met MacPherson v. Buick in torts will notice a deliberate contrast. Judge Cardozo there expanded liability for defective products beyond privity of contract, but for the most part legal malpractice has not followed that path.10 Two policies explain why. The first protects the representation itself. The strict privity rule lets attorneys represent their clients without the threat of suit from third parties who may compromise that representation, and a lawyer preoccupied with third-party negligence claims might give the client worse service by weighing the client's interests against the possibility of being sued.11 The second is balance. Legal malpractice law tries to strike a fair balance between the public's interest in consumer protection and the profession's need to exercise discretion in representing clients: lawyers should answer for harm caused by professional misconduct, but liability should not sweep so broadly that it hinders the practice of law.12
Shoemaker v. Gindlesberger shows the rule at full strength. Two of a decedent's children, who had never been the drafting lawyer's clients, sued the lawyer who drafted their mother's will and a deed, and the Ohio Supreme Court rejected the claim under the strict privity rule.13 Flaherty-Wiebel v. Morris, Downing & Sherred reaches the same result from a different position. A woman sued the lawyer and law firm that had represented her former husband in drafting their pre-nuptial agreement, and because she had her own counsel during the negotiation and the defendants never represented her, the Third Circuit held that she could not sustain a malpractice claim based on their drafting.14 In Gall v. Colon-Sylvain, a New York appellate court held that the attorney for a purchaser-borrower and a lender owed no duty to act or give advice for the benefit of the seller's shareholder, so the claim for breach of fiduciary duty failed.15 The Shoemaker plaintiffs were affected by the client's estate planning, while the Flaherty-Wiebel plaintiff stood across the table from the client. Both were outside the relationship, and that was enough to end the claim.
None of this leaves nonclients without a route to the lawyer. Children and former spouses of clients do bring malpractice claims.16 Lawyers may also be liable to nonclients for negligent misrepresentation, a theory the Restatement (Second) of Torts § 552(1) supports by providing for a duty of care when the defendant has a pecuniary interest in the transaction, even if the defendant is not in the business of supplying information.17 Courts have likewise accepted aiding and abetting a breach of fiduciary duty, so lawyers now face claims from more nonclients than strict privity alone would suggest, and courts may resist efforts to dismiss those actions summarily on defenses that deny plaintiffs their day in court.18 The default remains the starting point. The sections that follow identify who counts as a client and when a nonclient can overcome it.