Liability to Non-Clients: Rule Put to the Test

The general rule: attorneys are not liable to non-clients. Accordingly, apart from limited exceptions, privity is required to pursue a malpractice claim against an attorney. Despite this rule, plenty of non-clients file suit against attorneys. Are courts receptive to these all-too-common claims? A recent decision reinforces the general principle that privity is a must to proceed against an attorney.

A recent case, decided by the District of Columbia Court of Appeals suggests that courts are enforcing the general rule. In Scott v. Burgin, CAM-9825-09 Husband separated from Wife when he met the plaintiff. Although Husband was engaged to marry the plaintiff, he did not divorce Wife. Eventually, the plaintiff met with the defendant attorney to discuss a divorce on behalf of her fiancé, but the defendant was not engaged. It was one year later when the defendant law firm finally met with the Husband who engaged the firm to initiate divorce proceedings.

According to the complaint, the plaintiff contacted her fiancé’s attorney six times to ask if the divorce was served on Wife. The complaint was not served for months. However, in the interim, the Husband died before the divorce was finalized. As a result, the plaintiff (Husband’s fiancé) was ineligible to recover certain pension benefits earmarked for the fiancé that she could only recover if their marriage was finalized. Although she was designated as a beneficiary, the plaintiff could not effectuate her claim because she was not married to the now deceased Husband. The plaintiff brought a direct action against the attorney for malpractice. She prevailed at trial.

On appeal, the defendant attorney argued that the verdict should be set aside because he did not owe a duty to the non-client plaintiff. Finding in favor of the defendant attorney, the court recognized that in some instances the court has permitted non-client claims against an attorney where the client was a direct and intended beneficiary of the contracted services. However, the court declined to find that the facts of this case would fit into this exception. In reaching this conclusion, the court distinguished cases involving beneficiaries of wills who typically are permitted as non-clients to bring suits against the decedent’s attorney. The court found that a properly drafted will provides a direct enforceable benefit to the beneficiaries whereas a divorce provides no such direct benefit to a fiancée as the client would still need to marry the fiancée for her to derive any enforceable benefit.

Here, the court declined to extend the exception to the narrow privity rule. But, the decision could certainly have gone the other way. Professionals must take steps to delineate the scope of the relationship and ensure that potential beneficiaries retain separate counsel or at the very least are advised that no attorney-client relationship exists.

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1 Comment

  1. Don Lapowich

    Great article. Don’t you just love the cases on the cuspid of connectivity or proximity?

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