When Attorneys Are Sued by Non-Clients: The Immunity and Privilege Rule

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Typically, lawsuits against attorneys are brought by clients alleging legal malpractice. An essential element of a legal malpractice claim is the existence of an attorney-client relationship. The general rule is that a lawyer is liable only to his or her client and not to third persons. Nat’l Sav. Bank of District of Columbia v. Ward, 100 U.S. 195, 200 (1879) (“Beyond all doubt, the general rule is that the obligation of the attorney is to his client and not to a third-party”). Generally, when a non-client brings a lawsuit they cannot assert a legal malpractice claim. If a legal malpractice claim is asserted by a non-client, consideration should be given to promptly serving a dispositive motion to dismiss.

On occasion non-clients assert claims that are not for legal malpractice against attorneys relating to conduct of the attorney within the course and scope of rendering legal services to a client. Examples include claims of civil conspiracy or aiding and abetting a client to breach a contract or breach of some other duty owed by the client to the non-client. For instance, if a client refuses to close on a transaction under the terms of a signed agreement, a non-client may assert the attorney advising the client has conspired with the client or aided and abetted the client in the breaching conduct, causing damages to the non-client. But, attorneys owe a duty of loyalty to clients and a duty to give clients independent legal advice. An attorney has to use that “degree of knowledge, skill, and judgment ordinarily possessed by members of the legal profession in carrying out the services for his client.” Temple Hoyne Buell v. Holland & Hart, 851 P.2d 192, 198 (Colo. Ct. App. 1992). If an attorney owed a duty to third parties, then conflicts of interest would be inevitable and it would impair the attorney’s duty to represent her client within the bounds of the law. As the Supreme Court of New York succinctly stated in D. & C. Textile Corp. v. Rudin, 246 N.Y.S.2d 813, 817 (N.Y. 1964), “[p]ublic policy requires that attorneys . . . shall be free to advise their clients without fear that the attorneys will be personally liable to third persons if the advice the attorneys have given to their clients later proves erroneous.”

 

Read the article by Keith Broady, Kathleen Loucks and Lauren Nuffort which appeared in the Professional Liability Defense Quarterly.