On August 8, 1840, while delivering mail from the village of Hartford in England to the town of Holyhead in Wales, a gentleman named Winterbottom was ejected from his seat when the coach that he was driving broke down due to defects in its construction. The accident left Mr. Winterbottom lame for the rest of his life. He found himself without a legal remedy, however, when his suit against Mr. Wright, the supplier of mail coaches to the Postmaster General, was dismissed by the Court of Exchequer because he had no contractual relationship with Mr. Wright. The case, Winterbottom v. Wright, 152 Eng. Rep. 402 (Ex. 1842), established the English common law rule that privity of contract must exist for a duty to extend from one party to another.
In granting judgment to the defendant, Lord Abinger wrote that “[u]nless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.” Baron Alderson concurred, writing that “[t]he only safe rule is to confine the right to recover to those who enter into the contract: if we go one step beyond that, there is no reason why we should not go fifty.” Both judges were quoted by the Supreme Court of the United States in National Savings Bank of D.C. v. Ward, 100 U.S. 195 (1879), which introduced the so-called “privity rule” to this country. Writing for the Court, Justice Clifford recognized that in the context of attorney negligence actions not involving fraud or collusion, “the obligation of the attorney is to his client and not to a third party[.]” Id. at 200.
Evolution of (and Away from) the Privity Rule
Privity has been defined as “[t]he connection or relationship between two parties, each having a legally recognized interest in the same subject matter (such as a transaction, proceeding, or piece of property).” Black’s Law Dictionary (9th ed. 2009). See also id. (defining privity of contract as “[t]he relationship between the parties to a contract, allowing them to sue each other but preventing a third party from doing so”). Under Winterbottom and Ward, privity was long a prerequisite to suit for breach of a duty arising from a contractual relationship. In the early 1900s, courts began to relax the privity requirement in certain cases. For example, in a famous opinion written by Justice Cardozo, the New York Court of Appeals in 1916 abolished the requirement in product liability cases. SeeMacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). The privity rule nevertheless persisted in attorney negligence cases until the 1960s when California became the first state to relax the rule in professional negligence actions against estate-planning attorneys. Lucas v. Hamm, 56 Cal. 2d 583, 364 P.2d 685 (1961). In the decades since, most other states have followed suit.
The groundwork for California’s relaxation of the privity rule was laid in a case involving, not an attorney, but a notary public. In Biakanja v. Irving, a will was denied probate for lack of sufficient attestation. 49 Cal. 2d 647, 648, 320 P.2d 16, 17 (1958). The plaintiff, who would have received the entirety of the decedent’s property had the will been properly attested, received only one-eighth of the property via intestate succession. Id. She asserted a claim against the notary public who prepared and notarized the will. Id. The Supreme Court of California, in finding that the plaintiff should be permitted to recover despite the absence of privity, declared:
The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.
Id. at 650, 320 P.2d at 19.
This “balancing of factors” test would subsequently become the model for many states’ analysis of estate-planning malpractice claims, including California. InLucas, the court extended the reasoning of Biakanja to attorneys, holding that “[t]he same general principle must be applied in determining whether a beneficiary is entitled to bring an action for negligence in the drafting of a will when the instrument is drafted by an attorney rather than by a person not authorized to practice law.” 56 Cal. 2d at 588, 364 P.2d at 687–88. In doing so, the court overruled an earlier case in which it had held that “an attorney is liable for negligence in the conduct of his professional duties, arising only from ignorance or want of care, to his client alone . . . and not to third parties.” Buckley v. Gray, 110 Cal. 339, 342, 42 P. 900, 900 (1895).
Modern Approaches to the Privity Rule
Today, only a minority of states continue to apply the traditional privity rule. Most states now permit disappointed beneficiaries to pursue claims against estate-planning attorneys, though they have not settled on a consensus alternative to strict privity. As discussed below, some states permit tort claims, while other states permit third-party beneficiary contract claims. Another group allows both types of claims, and a few states have yet to take a definitive position.
Privity Rule Retained as a Complete Bar
Seven or eight states—Alabama, Colorado, Maryland, Massachusetts, Nebraska, Ohio, Virginia, and perhaps Vermont—retain the common law privity rule as a complete bar to most negligence actions against attorneys. See Robinson v. Benton, 842 So. 2d 631 (Ala. 2002); Glover v. Southard, 894 P.2d 21 (Colo. App. 1994); Noble v. Bruce, 349 Md. 730, 709 A.2d 1264 (1998); Miller v. Mooney, 431 Mass. 57, 725 N.E.2d 545 (2000); Lilyhorn v. Dier, 214 Neb. 728, 335 N.W.2d 554 (1983); Shoemaker v. Gindlesberger, 118 Ohio St. 3d 226, 2008-Ohio-2012, 887 N.E.2d 1167 (2008); Johnson v. Hart, 279 Va. 617, 692 S.E.2d 239 (2010).See also Hedges v. Durrance, 2003 VT 63, 175 Vt. 588, 834 A.2d 1 (2003) (favoring the privity rule in a different context). One state—Arkansas—has codified the common law privity rule. See Ark. Code Ann. § 16-22-310. See also generally Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324 (2010) (recognizing the state’s codification of the common law rule).
Privity Rule Retained with Personal Representative Exception
Three states—Maine, New York, and Texas—retain the common law privity rule but make a narrow exception allowing suit to be brought against the drafting attorney by the personal representative of the client’s estate. See Nevin v. Union Trust Co., 1999 ME 47, 726 A.2d 694 (1999); Estate of Schneider v. Finmann, 15 N.Y.3d 306, 933 N.E.2d 718 (2010); Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780 (Tex. 2006).
Privity Rule Relaxed in Favor of Tort Claims
Six states—Idaho, Missouri, Montana, West Virginia, Wisconsin, and Wyoming—as well as the District of Columbia allow disappointed beneficiaries to bring suit against estate-planning attorneys in tort notwithstanding the lack of privity. SeeHarrigfield v. Hancock, 140 Idaho 134, 90 P.3d 884 (2004); Donahue v. Shughart, 900 S.W.2d 624 (Mo. 1995); Stanley L. & Carolyn M. Watkins Trust v. Lacosta, 2004 MT 144, 321 Mont. 432, 92 P.3d 620 (2004); Calvert v. Scharf, 217 W. Va. 684, 619 S.E.2d 197 (2005); Auric v. Cont’l Cas. Co., 111 Wis. 2d 507, 331 N.W.2d 325 (1983); In re Estate of Drwenski, 2004 WY 5, 83 P.3d 457 (Wyo. 2004); Needham v. Hamilton, 459 A.2d 1060 (D.C. 1983). Some of these jurisdictions use the “balancing of factors” test enunciated in Biakanja, while others, such as West Virginia, use a pure negligence analysis. See, e.g., Calvert, 217 W. Va. at 694, 619 S.E.2d at 207 (holding that “direct, intended, and specifically identifiable beneficiaries of a will have standing to sue the lawyer who prepared the will where it can be shown that the testator’s intent, as expressed in the will, has been frustrated by negligence on the part of the lawyer so that the beneficiaries’ interest(s) under the will is either lost or diminished”).
Privity Rule Relaxed in Favor of Third-Party Beneficiary Contract Claims
Thirteen states—Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Michigan, Minnesota, New Hampshire, Oklahoma, Pennsylvania, Rhode Island, and South Dakota—permit suits against estate-planning attorneys under a third-party beneficiary contract theory. See Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378 (Fla. 1993); Young v. Williams, 285 Ga. App. 208, 645 S.E.2d 624 (2007); Pelham v. Griesheimer, 92 Ill. 2d 13, 440 N.E.2d 96 (1982); Walker v. Lawson, 526 N.E.2d 968 (Ind. 1988); Goodman v. Goldberg & Simpson, P.S.C., 323 S.W.3d 740 (Ky. Ct. App. 2009); Woodfork v. Sanders, 248 So. 2d 419 (La. Ct. App. 1971); Mieras v. DeBona, 452 Mich. 278, 550 N.W.2d 202 (1996); Francis v. Piper, 597 N.W.2d 922 (Minn. Ct. App. 1999); Simpson v. Calivas, 139 N.H. 1, 650 A.2d 318 (1994); Hesser v. Cent. Nat’l Bank & Trust Co., 1998 OK 15, 956 P.2d 864 (1998); Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983); Credit Union Cent. Falls v. Groff, 966 A.2d 1262 (R.I. 2009); Friske v. Hogan, 2005 SD 70, 698 N.W.2d 526 (2005). According to this theory, which is often grounded in section 302 of the Restatement (Second) of Contracts, a beneficiary may sue the drafting attorney if he or she can establish that he or she was an intended beneficiary of the contractual relationship between the attorney and his or her client. See, e.g., Guy, 501 Pa. at 51, 459 A.2d at 746 (holding that “a named legatee of a will may bring suit as an intended third party beneficiary of the contract between the attorney and the testator for the drafting of a will which specifically names the legatee as a recipient of all or part of the estate”).
Privity Rule Relaxed in Favor of Both Tort and Third-Party Beneficiary Contract Claims
Ten states—California, Connecticut, Delaware, Hawaii, Iowa, Kansas, New Mexico, Oregon, South Carolina, and Washington—permit both tort and third-party beneficiary contract claims against estate-planning attorneys. See Lucas v. Hamm, 56 Cal. 2d 583, 364 P.2d 685 (1961); Stowe v. Smith, 184 Conn. 194, 441 A.2d 81 (1981); Pinckney v. Tigani, 02C-08-129FSS, 2004 WL 2827896 (Del. Super. Ct. Nov. 30, 2004); Blair v. Ing, 95 Haw. 247, 21 P.3d 452 (2001);Schreiner v. Scoville, 410 N.W.2d 679 (Iowa 1987); Pizel v. Zuspann, 795 P.2d 42 (Kan. 1990); Leyba v. Whitley, 120 N.M. 768, 907 P.2d 172 (1995); Hale v. Groce, 304 Or. 281, 744 P.2d 1289 (1987); Fabian v. Lindsay, 410 S.C. 475, 765 S.E.2d 132 (2014); Stangland v. Brock, 109 Wash. 2d 675, 747 P.2d 464 (1987). A single state—Mississippi—has legislatively abolished the privity rule, thus opening the door to tort claims and probably third-party beneficiary contract claims as well.See Miss. Code Ann. § 11-7-20. See also generally Century 21 Deep S. Properties, Ltd. v. Corson, 612 So. 2d 359 (Miss. 1992) (recognizing that Miss. Code Ann. § 11-7-20 applies to legal malpractice actions and abolishing the requirement of an attorney-client relationship where a third party foreseeably and detrimentally relies on an attorney’s work).
Privity Rule Not Directly Addressed
The remaining eight states do not appear to have addressed whether a disappointed beneficiary may bring a claim against an estate-planning attorney squarely. Those states include Alaska, Arizona, Nevada, New Jersey, North Carolina, North Dakota, Tennessee, and Utah.
Considerations Supporting the Various Approaches
The variety of approaches to the privity rule demonstrates that courts have struggled to address conflicting interests and public policy concerns. The traditional rule has historically been justified by three primary considerations. First, the privity rule has been said to protect “the attorney’s duty of loyalty to and effective advocacy for his or her client.” Noble, 709 A.2d at 1270. Exposing estate-planning attorneys to lawsuits by disappointed beneficiaries would, in the view of courts adhering to the privity rule, “create a conflict during the estate planning process, dividing the attorney’s loyalty between his or her client and the third-party beneficiaries.” Barcelo v. Elliott, 923 S.W.2d 575, 578 (Tex. 1996). See alsoNoble, 709 A.2d at 1277 (“Adopting a new rule that would subject an attorney to liability to disappointed beneficiaries interferes with the attorney’s ability to fulfill his or her duty of loyalty to the client and compromises the attorney’s ability to represent the client zealously.”). The privity rule is believed to guard against this danger because it is “rooted in the attorney’s obligation to direct attention to the needs of the client, not to the needs of a third party not in privity with the client.”Shoemaker, 2008-Ohio-2012 at ¶ 9, 118 Ohio St. 3d at 228, 887 N.E.2d at 1170.
Second, the privity rule is said to protect attorneys against the potential for unlimited liability. As the Court of Appeals of Maryland opined, “absent the strict privity rule there would be no limit as to whom a lawyer would be obligated.”Noble, 709 A.2d at 1270. That court’s sentiments echoed those of Lord Abinger and Baron Alderson:
Unless we confine the operation of such contracts as this to the parties who entered into them . . . the most absurd [and outrageous] consequences, to which no limit can be seen, will ensue[.] . . . [I]f we hold that the plaintiff can sue in such a case, there is no point at which such actions will stop. The only safe rule is to confine the right to recover to those who enter into the contract; if we go one step beyond that, there is no reason why we should not go fifty.
Ward, 100 U.S. at 203 (quoting Winterbottom). See also Shoemaker, 2008-Ohio-2012 at ¶ 15, 118 Ohio St. 3d at 230, 887 N.E.2d at 1171 (“Rather than expose the lawyer to the 50 [steps referenced by Winterbottom and Ward], we conclude that lawyers should know in advance whom they are representing and what risks they are accepting.”).
Third, the privity rule is said to protect attorney-client confidentiality. Without the rule, an attorney defending a malpractice suit brought by a disappointed beneficiary could be put in the position of having to reveal confidential client communications—as permitted by Rule 1.6(b)(5) of the Model Rules of Professional Conduct—that the client may not have wanted disclosed. For example, a client might tell a relative that he or she will receive a portion of the client’s estate even though the client secretly dislikes the relative and desires that the relative take nothing. The client may confide his or her feelings to his or her attorney and request the preparation of estate-planning instruments, omitting the disliked relative. Knowing that his or her attorney may later reveal such sensitive and confidential disclosures in the context of a lawsuit brought by the omitted relative may harm the attorney-client relationship by causing the client to withhold vital information. The privity rule protects against this scenario by prohibiting lawsuits by non-clients.
The principle objection to the privity rule is, of course, its potential to lead to circumstances that violate the maxim that “[e]quity will not suffer a wrong without a remedy.” Indep. Wireless Tel. Co. v. Radio Corp. of Am., 269 U.S. 459, 472 (1926). If an estate-planning attorney is negligent in drafting a will, for example, the client’s intent may be frustrated, with the loss falling on an innocent third party, an intended beneficiary who is accidentally disinherited. Under the privity rule, only the client may sue, but because the negligence is typically not discovered until after the client’s death, there is no one with standing to bring a claim. Of course, courts applying the privity rule are aware of this potential for inequity, but they have determined that the potential for perceived unfairness is justified by the important public policy considerations embodied within the rule. For example, Baron Rolff wrote in Winterbottom:
This is one of those unfortunate cases in which there certainly has been damnum, but it is damnum absque injuria; it is, no doubt, a hardship upon the plaintiff to be without a remedy, but, by that consideration we ought not to be influenced. Hard cases, it has been frequently observed, are apt to introduce bad law.
See also Barcelo, 923 S.W.2d at 578 (“We believe the greater good is served by preserving a bright-line privity rule which denies a cause of action to all beneficiaries whom the attorney did not represent.”).
The majority of courts see things differently than Baron Rolff. They believe that the privity rule’s advantages—which they generally recognize—are outweighed by the importance of providing a remedy in instances of estate-planning malpractice. In Lucas, for example, the Supreme Court of California wrote: “We are of the view that the extension of [an attorney’s] liability to beneficiaries injured by a negligently drawn will does not place an undue burden on the profession, particularly when we take into consideration that a contrary conclusion would cause the innocent beneficiary to bear the loss.” 56 Cal. 2d at 589, 364 P.2d at 688.
Those courts that have relaxed or abandoned the privity rule in the estate-planning context may disagree about the nature of the remedy. Compare Donahue v. Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624 (Mo. 1995) (permitting only a tort claim), with Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983) (permitting only a third-party beneficiary claim). They may also disagree whether extrinsic evidence should be permitted to show the client’s intent, or whether the client’s intent must be determined from the instrument alone.Compare Simpson v. Calivas, 139 N.H. 1, 650 A.2d 318 (1994) (permitting the use of extrinsic evidence), with Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378 (Fla. 1993) (prohibiting the use of extrinsic evidence and restricting the analysis to the four corners of the instrument). However, they all agree that “[p]ublic policy supports the imposition of liability on an attorney who acts negligently in drafting or supervising the execution of a will” and that “the lack of privity should not be a bar to this action.” Auric, 111 Wis. 2d 507, 514, 331 N.W.2d 325, 329 (1983).
Responding to the Retreat from the Privity Rule
The privity rule’s fall from grace over the last half century has undoubtedly been frustrating to estate-planning attorneys. Even in those states where the rule remains viable, counsel should not rely on its continued applicability because it could be further relaxed or abrogated at any time. Given the modern trend, plaintiffs’ attorneys are no doubt eager to see their cases become the vehicles through which the rule is washed away for good. It probably goes without saying, but estate planners—as well as their insurers and defense counsel—must vigilantly follow legal developments in this rapidly changing area of the law. There are also several practical steps which are worthy of consideration by estate-planning attorneys.
- Spell out the scope of the engagement in a detailed representation agreement and scrupulously adhere to its terms.
- Ask each client to complete a questionnaire regarding his or her testamentary intent. Such a document may bolster the argument that the client’s intent was properly expressed in the instrument. Of course, if an error is made, a questionnaire will only bolster the plaintiff’s case, so the lawyer must carefully abide by it.
- In lieu of or in addition to a questionnaire, have each client sign a separate document of intent. This may seem redundant, but it could prove useful, especially if it establishes that a client rejected any advice imparted by his or her attorney.
- Make any intentional disinheritance or other seemingly unusual decisions explicit in the instrument. For example, a will might say, “I am intentionally not providing for my nephew, John Doe.” Language of this sort would all but foreclose a lawsuit by the disinherited relative.
- Be certain that insurance policies with appropriate limits are in place, and consider clientele when applying for insurance. A practitioner planning estates for clients worth millions of dollars should not have a policy with limits in the hundreds of thousands of dollars.
Whether it is loved or hated, seen as still relevant or as an anachronism, the indisputable fact is that the number of states that continue to apply the traditional privity rule is dwindling. Its days as a viable legal principle in the United States—at least with respect to estate-planning malpractice claims—appear to be numbered. However, by staying attentive to changes in the legal landscape and implementing practical suggestions such as those enumerated here, estate-planning attorneys may be able to mitigate losses in the unfortunate event of a lawsuit even in those jurisdictions where the privity rule no longer applies.
Matthew G. Gerrald is a partner with Barnes, Alford, Stork & Johnson, LLP in Columbia, South Carolina. He practices primarily in the fields of civil litigation and appeals, general and professional liability defense, and insurance coverage, along with collections, construction law, real estate, and church law.
This article originally appeared under the title “Anachronistic or Still Relevant? The Privity Rule as a Bar to Attorney Malpractice Actions” in the April 2015 issue of For the Defense, a publication of DRI.