As an attorney that regularly handles legal malpractice cases, I frequently recite the standard elements of a professional negligence claim: duty, breach, causation and damages. In the vast majority of cases, the battles are fought over the last three elements. There is rarely a fight over whether the attorney owed the client a duty of care because, in most instances, ascertaining the identity of the client is not that difficult. In some cases, however, the client’s identity is less clear. Or, as often happens in trust and estate malpractice cases, the plaintiff bringing the legal malpractice case is not the attorney’s client. That brings up a question: When (if ever) does an attorney owe a nonclient a duty of care?
In a recent California case, Gordon v. Ervin Cohen & Jessup LLP, 88 Cal. App. 5th 543, 305 Cal. Rptr. 3d 53 (Cal. Ct. App. 2d Dist. 2023), a California Court of Appeal addressed this very issue. In Gordon, two beneficiaries sued the law firm that created the estate plan claiming the plan did not adhere to the settlors’ intent. It was undisputed the settlors were the law firm’s only clients. But, when the dispute arose, the settlors were deceased, and thus, could not bring a malpractice claim against their former attorneys.