Competence & Malpractice · 6-12% of the exam
12.2.2Civil Liability to Non-Clients
Why
People outside the retainer routinely arrange their affairs around a lawyer's work — a will names them, an opinion letter is written for them to read. If privity were an absolute shield, the person actually harmed by careless work would have no remedy, while the client who suffered nothing would hold the only claim.
Plain English
A lawyer can owe due care to someone outside the retainer: a non-client who was an intended beneficiary of the legal services, or one the lawyer signaled was expected to rely on the opinion or work product. A prospective client given advice is owed reasonable care unless the lawyer clearly disclaimed the relationship at the outset. Outsiders who reasonably relied on something the lawyer did without authority may sue as well, and the absence of a formal engagement doesn't defeat the claim.
Duty to non-clients
A lawyer owes a duty of due care to a non-client if:
- Intended third-party beneficiary: the non-client was an intended beneficiary of the lawyer's legal services (e.g., a named beneficiary of a will the lawyer was retained to draft or update)
- Invited reliance: the lawyer signaled to the outsider that reliance on the opinion or work product was expected
More points on the same duty, and the second does not need a formal engagement:
- Prospective clients: an attorney who provides legal advice during a consultation must use reasonable care; incompetent advice can give rise to a malpractice claim unless the attorney clearly disclaimed the relationship at the outset
- Unauthorized acts: reasonable reliance by an outsider on something the lawyer did without authority can support a claim against the lawyer, and lack of a formal engagement does not defeat it
Example 1
Ex. 1
Nina's parents retained an attorney to prepare wills leaving their entire estate to Nina. The attorney mistakenly named a charity as primary beneficiary. Nina, who had no client relationship with the attorney, can sue as the intended beneficiary of her parents' legal engagement. You route around the missing engagement here; that is not the fact that ends the question.
Trap
Questions · 1
Q 01ch12-e06
Question 1 of 1 · Rule 1.8
Two clients retained Attorney to prepare wills leaving the whole of their property to their only child. Attorney drafted the documents and, through a transcription mistake, named a charitable foundation as the primary taker instead of the child. Neither client noticed the substitution, and both signed. After both clients died, the estate passed under the wills to the foundation. Child never met Attorney, signed no engagement letter, and paid Attorney nothing for the work. Child now wishes to sue for the value of the lost inheritance, and Attorney answers that the duty of care ran only to the two clients who paid for the wills. May Child maintain a malpractice claim against Attorney?
Keys 1 to 4 choose.