When it comes to representing clients, lawyers have a lot of responsibility, and this includes an accident attorney. Their careless conduct or inaction may compromise their clients’ rights and result in serious damage, including financial losses. But what happens if a lawyer’s carelessness causes injury to someone who isn’t a client?
This is a common question in the context of estate planning. When the beneficiaries of a trust or estate believe they have been harmed, they may attempt to hold the lawyer who created the estate agreements liable, even though they were never the lawyer’s clients. What does the law say about these circumstances?
The Confidentiality Rule
The overall rule is straightforward: Non-clients usually cannot sue an attorney who did not represent them. The privity rule is a requirement that may be found in the definition of legal malpractice. The plaintiff must establish three key factors in order to hold an attorney accountable:
- A legal obligation — including privity
- A violation of that obligation
- The damage caused by the breach
The first aspect, privity, establishes a qualified attorney’s legal and ethical responsibility to his or her clients. These responsibilities are a direct result of the attorney-client relationship. There is no attorney-client relationship without confidentiality and hence no responsibility owed by the lawyer. If a lawyer owes no obligation to anyone, such as a non-client, he cannot be negligent.
This guideline is based on the high standards that attorneys must adhere to when representing clients. Because the attorney-client relationship is considered a fiduciary relationship under the law, attorneys owe their clients the highest level of care, devotion, and fidelity. Extending these responsibilities to non-clients is thought to jeopardize the lawyer-client fiduciary relationship.
Attorney-Client Interactions are Implied
What if an attorney acts as though he or she is representing you? What if the lawyer gives you that impression and never clarifies the situation?
You may still have a legal malpractice claim in this case. The attorney-client relationship might be explicit (i.e., in a comprehensive representation agreement) or implicit. When an attorney deceives a non-client into believing that an attorney-client relationship exists, he or she might be held accountable for the high standards such connection requires.
A non-client businessman obtained a $1.29 million judgment victory against the legal firm that represented his company in one notable instance. By omitting to specify that it represented just the corporation and not the person, the legal office exposed itself to litigation.
A Notable Exception to the Rule
The Texas Supreme Court has recently created a narrow exemption to the privity rule in the context of estates. Consider the case where an attorney poorly creates estate planning paperwork, exposing the client to large estate taxes that could have been avoided if the forms had been properly designed. Who can hold the attorney liable if the carelessness is not discovered until after the client has died and the documents have taken effect?
In certain cases, the estate’s personal representative may file a claim for legal malpractice against the attorney. Even though the representative is not a client in his or her own right, he or she works on behalf of the dead customer’s estate. However, in such cases, the malpractice claim must be restricted to the loss experienced by the estate. Because the benefactors had never been the lawyer’s clients, claims for specific injury to the estate’s beneficiaries are not actionable.
Another Approach to Accountability
Even if you are unable to file a legal malpractice claim against a lawyer who was not your counsel, you may have other legal choices. In tort matters other than legal malpractice, the privity rule does not apply. For example, non-clients can sue lawyers in Texas for negligent misrepresentation, fraud, or DTPA violations if such causes of action would be viable against a defendant in general.