St. Mary's Law Journal


Brian J. Davis


Courts should examine the relationship of a non-client to a negligent lawyer to determine whether a lawyer is liable to a non-client despite lack of privity. In most jurisdictions, attorneys enjoy the privity of contract requirement which limits their duty to exercise reasonable care. As a result, lawyers are normally immune to negligent malpractice actions brought by non-clients. Courts should examine the relationship between the attorney and the non-client to determine whether the requirement of privity is an overly restrictive limit on the lawyer’s scope of duty. These relationships can be classified into three categories. The first category involves plaintiffs who are the intended beneficiaries of the attorney’s work for a client. The second category includes plaintiffs who rely on negligent misrepresentations made by the attorney. The third category includes plaintiffs who are in an adversary relationship to the lawyer and his client. Attorney liability should extend to a non-client, intended beneficiary despite lack of privity. The main function of the privity requirement is to prevent unlimited liability. In this category of cases, however, the plaintiffs who may have legitimate claims are certain and foreseeable. Attorneys should also be liable for negligent misrepresentations made to plaintiffs foreseen to rely on the information. The Restatement (Second) of Torts provides a proper standard of the law for this category of cases and does not impose an undue burden on the legal profession since no unforeseen plaintiffs would recover. Lastly, the adverse plaintiff should not recover against the opposing attorney for negligence in bringing or handling his client’s suit. The dangers of creating a conflict of interest and of inhibiting a lawyer in performing his duty of zealously advocating his client’s position are too great to allow liability for less than intentional or malicious conduct.


St. Mary's University School of Law