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Legal Malpractice Case Dismissed For Lack of Privity

Scott v. Burgin, DC: Court of Appeals 2014 – Google Scholar.

The issue of privity frequently arises in legal malpractice litigation. A party lacks privity when the party did not have an attorney-client relationship with the lawyer. Recently, the privity rule has been relaxed by courts to allow lawsuits for legal malpractice by some persons who did not have an attorney-client relationship, such as the beneficiaries of an estate plan. Thus, a lawyer who breaches the duty of care in drafting an estate plan can sometimes be subject to suit by the beneficiaries who lost their inheritance.

Here, the plaintiff was the girlfriend of the decedent. She alleged that the lawyers for Kenneth Woodruff were negligent in failing to prosecute his divorce action against his wife. Burgin alleged that, had the divorce been obtained, she would have been eligible to receive certain retirement benefits upon Woodruff’s death.

Burgin alleged that the lawyers were negligent in failing to prosecute the divorce:

“Woodruff did not meet with Scott until one year later in January 2007. Burgin escorted Woodruff to the meeting, and she filled out a divorce questionnaire on his behalf while Woodruff and Scott spoke alone. Shortly thereafter, Woodruff signed a retainer agreement for Scott’s representation in his “Divorce Proceedings.” Burgin later contacted Scott on six occasions to ask whether the complaint had been served on Patricia Woodruff. Scott did not serve Patricia Woodruff with the complaint until November 2007. Woodruff died in April 2008, and a divorce was never secured prior to his death.”

The court reasoned that the recent relaxation of the privity rule did not extend to Burgin because, even had the lawyers prosecuted the divorce action and obtained the divorce decree, there could be no assurance that Woodruff would have married Burgin. This made Burgin’s case different from the case of an heir who sues an estate planning attorney. The heir alleges, but for the negligence of the lawyer, I would have received an inheritance. The law regards the heir differently because, even if there is no will, the heir had certain rights to the decedent’s property. Here, the girlfriend’s rights depended upon another event, a marriage.

The Court explained its reasoning as follows:

In this jurisdiction, whether a plaintiff falls into the class of persons who may sue an attorney for malpractice has been resolved as “a matter of law.” Hopkins v. Akins, 637 A.2d 424, 428 (D.C. 1993) (beneficiaries of an estate may not sue attorney for estate’s personal representative); Needham v. Hamilton, 459 A.2d 1060 (D.C. 1983) (intended beneficiaries of estate may sue attorney who drafted the decedent’s will).[4] “It is well established that `the general rule is that the obligation of the attorney is to his client, and not to a third party . . . .'” Needham, 459 A.2d at 1061 (quoting National Savings Bank v. Ward, 100 U.S. 195, 200 (1880)).However, “[t]he rule requiring privity is not . . . without exception.” Id. at 1062. We may allow legal malpractice suits by “third parties notwithstanding a lack of privity where the impact upon the third party is `not an indirect or collateral consequence,’ but the `end and aim of the transaction.'” Id. (quoting Glanzer v. Shepard, 135 N.E. 275, 275 (N.Y. 1922) (Cardozo, J.)). Otherwise put, third party claims may be sustained where the plaintiffs were “the direct and intended beneficiaries of the contracted for services.” Id.

The classic situation that meets these criteria is the failure of an attorney to properly draft a will. Comparing the case before us with that of a negligently omitted beneficiary demonstrates why we must reject Burgin’s claim. “`[T]he main purpose of a contract for the drafting of a will is to accomplish the future transfer of the estate of the testator to the beneficiaries named in the will . . . .'” Needham, 459 A.2d at 1063 (quoting Lucas v. Hamm, 364 P.2d 685, 688 (Cal. 1961)). In such a situation, the duty of care runs to the intended legatee as a “direct and intended” beneficiary of the attorney-client relationship.Id. A properly drafted and executed will provides beneficiaries with legally enforceable rights upon the testator’s death. A divorce decree, on the other hand, does not provide the same “direct” benefit to the fiancée of a divorcing client. The divorce does not, of its own force, redistribute the client’s assets to the fiancée, nor does it affect a change in the fiancée’s legal status. Rather, the “end and aim” of a divorce proceeding is the dissolution of a marriage and the distribution of marital assets.”

Accordingly, the D.C. Court of Appeals dismissed the legal malpractice action against the lawyers.

Edward X. Clinton, Jr.