Legal Malpractice

Estates and Trusts in the Legal Malpractice World

By (Andrew Lavoott Bluestone)

The more things change, the more they stay the same, say the French.  In the Estates and Trust - legal malpractice world, this saying is illustrated by Leff v Fulbright & Jaworski, L.L.P. ;2010 NY Slip Op 08443 ;Decided on November 18, 2010 ;Appellate Division, First Department.  There has been a revolution in this world, yet the landscape for a huge portion of the malpractice questions remains unchanged.  
 

New York is a privity state, in the minority of all states, and is a strict privity state at that.  Absent an attorney-client relationship, absent reliance on opinion letters or their equivalent, and absent fraud, one may sue an attorney only when there is privity.

"In New York it is well established that absent fraud, collusion, malicious acts or similar circumstances, the draftsperson of a will or codicil is not liable to the beneficiaries or other third parties not in privity who might be harmed by his or her professional negligence (see Mali v De Forest & Duer, 160 AD2d 297 [1990], lv denied 76 NY2d 710 [1990]). Defendants demonstrated that while they represented plaintiff in her estate planning and other matters, she was not in privity with them with regard to her late husband's estate planning. The absence of such privity remains a bar against her estate malpractice claims (Estate of Schneider v Finmann, 15 NY3d 306 [2010]). "

"Plaintiff cannot bring her claim pursuant to the "approaching privity" standard outlined in Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood (80 NY2d 377, 383 [1992]). There is no evidence that defendants knew and intended that their advice to plaintiff's late husband was aimed at affecting plaintiff's conduct or was made to induce her to act. Nor is there evidence that plaintiff relied upon defendants' advice to her detriment. Significantly, the standard is not satisfied when the third party was only "incidentally or collaterally" affected by [*2]the advice (see id.)".

Full post as published by New York Attorney Malpractice Blog on November 23, 2010 (boomark / email).