Can someone other than a client sue for legal malpractice?

Typically, only someone directly harmed by an attorney’s actions can sue that attorney for legal malpractice. But there are exceptions.

As noted on the Orange County Bar Association website, attorneys owe their clients certain duties. These include competent representation and loyal service. These duties rarely extend to third parties, so third parties don’t often have grounds to file for legal malpractice. But that doesn’t make such third-party suits impossible. California courts have ruled there are cases in which attorneys must fulfill their responsibilities to non-clients.

Biankanja v. Irving

Generally, if you hope to prove you were the victim of legal malpractice, you need to show that you were the attorney’s client and that he or she was acting as your attorney. This is the first step in proving that the attorney owed you good—or reasonable—service. Courts recognize the privity, or legal obligations, tied to the attorney-client relationship, and for a long time, they ignored any duty of service an attorney might have to anyone else.

Then, as the Orange County Bar Association notes, the case of Biankanja v. Irving punctured the perfect privity by adding an exception. In that case, the California Supreme Court ruled that a notary public had a duty to not just to the creator of a will but also to its intended beneficiaries. But this legal liability wasn’t unbounded. It needed to consider six factors:

  • If the service was designed to impact someone
  • That the intended target was harmed
  • The harm was foreseeable
  • That the error clearly caused the harm
  • That the error was due to negligence or bad actions
  • That any correction might prevent further harm

While Biankanja v. Irving wasn’t a case of legal malpractice on the part of an attorney, it was groundbreaking. It set the stage for other cases in which the courts held that, in certain cases, attorneys could be liable to third parties. Over time, these cases have included:

  • The intended beneficiaries of wills and trusts, as well as trustees
  • Third parties, such as spouses, whose interests were closely linked to a client’s
  • Third parties looking to do business with a client to whom an attorney has distorted the facts

In other words, if the attorney should have known his or her failures could impact you, you might deserve an exception to the privity of the attorney-client relationship. And you might have a legal malpractice case, even if the attorney’s immediate client doesn’t pursue one.

Errors don’t always amount to malpractice

Getting the courts to recognize your interest in a legal matter is only the first step in legal malpractice. Then you must show that your attorney was negligent or acted in bad faith. And you must show that, if not for your attorney’s failures, you would have met with a better outcome. Sometimes errors aren’t signs of incompetence or bad faith. Sometimes an attorney’s incompetence might not have changed the case you were never going to win.

The intricacies of legal malpractice cases make them difficult to assess. Even for veteran lawyers who don’t routinely deal with legal malpractice. If you believe your attorney wronged you, you want to discuss your case with a firm that has a history of success specifically with legal malpractice.

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