Attorney Malpractice Liability to Non-Client

In the course of an attorney’s representation of a client, he may commit legal malpractice with respect to his prosecution, defense, or appeal of the client’s action or his preparation of transactional documents for the client. The attorney’s actions may constitute legal malpractice if he fails to use the skill, prudence, and diligence that attorneys of ordinary skill and capacity would use in performing their legal tasks. In addition to being liable to the client, the attorney may also be liable to a non-client in certain circumstances.

No Liability to Non-Client

Generally, an attorney is not liable to a non-client for legal malpractice. The basis of this rule is that an attorney cannot breach a duty to a non-client because there is no privity of contract between an attorney and a non-client.

Liability to Non-Client

In some jurisdictions under certain circumstances, the attorney may be held liable for malpractice to a non-client.

Intended Beneficiaries

An attorney may be liable to a non-client who was an intended beneficiary of the attorney’s services to a client. For example, an intended beneficiary of a client’s will may be entitled to bring an action against the attorney for improperly drafting the will.

Foreseeable Reliance Exception

A recognized exception to the general rule of no liability to non-clients is that an attorney may be liable if his services to a client were performed so as to influence non-clients to justifiably rely on the services rendered. For example, if an attorney issues an opinion letter regarding the legal status of his corporate client so as to influence potential lenders, the attorney may be liable to the lenders who relied on that letter if the letter was negligently drafted and caused damage to the lenders.

Fiduciary Relationship

An attorney may be liable for malpractice if his negligence causes damage to a non-client with whom he has established a fiduciary relationship. For example, an attorney for a corporation may have a fiduciary duty to the directors of the corporation. Thus, if his malpractice in relation to his services to the corporation causes damage to the directors, he may be liable.

Intentional Torts

An attorney, like other people, may be held liable for an intentional tort committed against a non-client, usually an adverse party of the attorney’s client. A non-client may bring a malicious prosecution claim if the attorney misused the legal process for a purpose other than that of securing the proper adjudication of the client’s claim. An attorney may be liable for abuse of process if he uses the legal process to secure a collateral benefit not directly related to the process. A non-client may bring an action for fraudulent, malicious, or intentional misrepresentations made by the attorney to the non-client (e.g., during the course of negotiating a settlement). An attorney may also be liable for intentional infliction of emotional distress. For example, the attorney may continually harass an adverse party in an attempt to influence the course of litigation.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.