Court Dismisses Daughter’s Lawsuit Against Mother’s Estate Lawyer 

Before she died, Dorothy Dreher (“Dorothy”) had her attorney prepare a power of attorney naming her son David as her agent. Dorothy later had that same attorney prepare a Last Will and Testament, which favored her son David over her daughter Rebecca.

Rebecca became concerned about David’s actions under Dorothy’s power of attorney, and had her attorney contact Dorothy’s attorney, asking if he had prepared a Last Will and Testament or other estate documents on Dorothy’s behalf. Dorothy’s attorney responded that he was “not in a position to acknowledge if Dorothy … [was] a client, or if [the firm had] prepared any estate documents for [her].”

Dorothy later died, and Rebecca filed a lawsuit (1) contesting Dorothy’s will and (2) seeking a return of estate assets she claimed that David had transferred to himself. After Rebecca and David reached a settlement, Rebecca sued Dorothy’s attorney, alleging that Rebecca was a “third-party beneficiary” of negligent legal advice the attorney gave David, which caused David to make gifts to himself. Rebecca also claimed that Dorothy’s lawyer committed fraud against Rebecca, by refusing to disclose aspects of his representation of Dorothy. The lower court dismissed Rebecca’s claims against the lawyer, and Rebecca appealed.

On appeal, the dismissal of Rebecca’s claims against Dorothy’s lawyer was affirmed. With regard to the fraud claim, the appeals court noted that Rebecca had not claimed that the lawyer had conveyed a false statement to her; just that the lawyer had refused to disclose information regarding his representation of Dorothy. The court reasoned that Dorothy’s lawyer “had no duty to disclose that he represented Dorothy, and thus, his refusal to do so did not constitute a material misrepresentation.” With regard to Rebecca’s legal malpractice claim, the appellate court agreed with the lower court that Rebecca had failed to establish that she was owed a duty by her mother’s attorney. “Because of our Supreme Court’s ordinary reluctance to permit non-clients to sue attorneys,” an attorney’s duty to a non-client is “exceedingly narrow”:

Whether an attorney owes a duty to a non-client third party depends on balancing the attorney’s duty to represent clients vigorously, with the duty not to provide misleading information on which third parties foreseeably will rely.

Here, the lawyer represented Dorothy and David; Rebecca had not alleged that his representation was “meant to confer a benefit to” Rebecca. Because the attorney did not owe a duty to Rebecca, Rebecca could not maintain a legal malpractice action against him.

A copy of the Dreher v. Ross case  can be found here:

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