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St. Mary's Law Journal

Abstract

The practicing attorney must have a complete understanding of legal malpractice liability. Managing this risk can be a precarious responsibility when the law is not clearly defined. This is compounded by the steady erosion of attorney-client privity barriers making it easier for third party non-clients to sue lawyers for legal malpractice. This is the current state of matters in Texas since the Texas Supreme Court decided Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. on May 5, 2006. The Belt court determined personal representatives of an estate may bring a malpractice claim against the decedent’s attorneys. The Belt court was concerned with two competing policies: strict privity and relaxed privity. Since Texas is a “strict privity” state, an attorney does not owe a duty of care to third party beneficiaries of their services. There are policy concerns enumerated in Belt which support a relaxed privity requirement. If an attorney owes no duty of care to either a beneficiary or personal representative, then an attorney is afforded de facto immunity. The court enumerated two limitations on the Belt privity rule. First, courts should limit the Belt privity rule to estate-planning malpractice. The courts should consider the logical differences between surviving estate-planning claims and other legal malpractice claims and address the causes of action on a case-by-case basis. Second, where privity is extended to personal representatives, damages should be limited to the injury suffered by the decedent. The Belt privity rule was intended to prevent lawyers from having immunity arising from the lawyer’s negligence while also protecting the attorney’s ability to zealously represent a client.

Publisher

St. Mary's University School of Law

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