Duties to Non-clients

Most malpractice claims involve attorneys against former clients.  Typically, the client alleges that the attorney’s conduct fell below the expectations set forth in the engagement contract.  There are times, though, where non-clients sue professionals for misconduct as well.  Most attorneys are able to defend these claims through lack of privity.  However, there are exceptions to this rule and attorneys need to be aware of them.

In fact, there was a recent case in South Carolina where an attorney was liable to a non-client.  In that particular case, the plaintiff filed a malpractice claim against the attorney for an alleged drafting error on her uncle’s trust that resulted in her being disinherited from her uncle’s estate.

The trial court dismissed the claim because there was no attorney-client relationship.  However, the plaintiff appealed.  On the appeal, the Supreme Court revised the ruling.  The court reasoned that where the client hired counsel to document an estate for the benefit of heirs, that the attorney’s responsibility was to carry out the client’s intentions.  And in this case the intent was directly for the benefit of a third party.

This decision is the exception to the general rule applied to all professionals but is often the case for estate planning attorneys. The decision highlights the limited instances in which an attorney owes a duty to non-clients. All professionals should consider the possibility that non-clients are relying on their services and may have expectations arising from a client engagement. In those scenarios, professionals should pause and, when appropriate, clearly communicate to the non-client that there is no professional relationship. In this manner, professionals may reduce their exposure to liability from non-clients.

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