The New Jersey appeals court reversed a trial court’s dismissal of a legal malpractice action brought by beneficiaries of an estate against the attorney representing the estate, holding that estate attorneys may owe a duty of care to non-clients when the attorneys know, or should know, that non-clients will rely on the attorneys’ representations. Higgins v. Thurber, Docket No. A-1577-13T4 (App. Div., April 17, 2015)

Salvatore John Calcaterra, died on April 11, 1996. At that time he was married to his second wife, Donna Calcaterra. He was also survived by five children. Decedent’s first wife was the mother of decedent’s first four children–Laura, Michael, Sally and Robyn. Donna was the mother of decedent’s fifth child, Jenna.

Prior to Sal’s death, Donna, who held a power of attorney from Sal, transferred to herself four of six seats Sal held on the New York Mercantile Exchange (NYMEX).

Sal’s Will named his son Michael as executor of his estate. In 1996, Michael, as executor, filed a lawsuit against Donna alleging that Donna had improperly transferred the NYMEX seats and other assets. Following a bench trial, the trial judge ruled that the estate was entitled to four and Donna entitled to two of the NYMEX seats. This decision was affirmed on appeal.

Thereafter, several other lawsuits were filed by the parties against each other. In 2005, Jenna filed suit against Michael, Robyn and defendant-attorneys. She alleged, among other things, that defendant-attorneys committed legal malpractice in representing the estate. The legal malpractice action was dismissed by way of summary judgment in 2006.

In 2007, Laura and Robyn filed another legal malpractice action against defendant-attorneys. Defendant-attorneys moved to dismiss the complaint. Viewing the motion as seeking summary judgment, the judge dismissed the lawsuit, holding that the legal malpractice claim was barred by the entire controversy doctrine.  On appeal, the dismissal was reversed and the case was remanded for a full trial. The Supreme Court affirmed.

On remand, and after extensive discovery proceedings, defendant-attorneys again moved for summary judgment. The trial judge again dismissed the lawsuit, concluding that defendants were the attorneys for the estate and executor only, not for the decedent’s beneficiaries. As such, an attorney representing an estate owes no duty to beneficiaries as a matter of law since the beneficiaries are not clients. Plaintiffs appealed.

On appeal, the appeals court again reversed and remanded. The appellate court held that an attorney for the estate may owe a duty of care to the estate beneficiaries, even though they are not clients of the estate attorney:

An attorney representing an estate [should] be aware that advice given to an executor may have an impact on the estate’s heirs, [and] the attorney should also be aware that laypersons may not fully grasp the significance of the limits on the scope of the attorney’s role in such matters. To be sure, whether a defendant owes a duty of care presents a question of law for the court, but whether an attorney owes a duty to a non-client will often turn on the surrounding circumstances, which may appear disputed or uncertain. … [A]ttorneys may owe a duty of care to non-clients when the attorneys know, or should know, that non-clients will rely on the attorneys’ representations and the non-clients are not too remote from the attorneys to be entitled to protection. (Emphasis Added; Citations Omitted)

Interestingly, the New Jersey lawyer sued by the beneficiaries in this case, Mary Thurber, was elevated to the bench in 2009 and now serves as a judge on the Superior Court in Bergen County.

The case is annexed here – Higgins v. Thurber, Docket No. A-1577-13T4 (App. Div., April 17, 2015)

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