by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

In the string just ending on the title insurance case, I do not want to be construed as advocating for a different result in that case. Whatever my views on disclaimers in general, I don't think that the lienholder in that case had a claim against the insurer.

Here's one that raises a similar issue of non-client liability claims. Again, I tend to agree with the result on the facts, but that doesn't prevent some challenging of the presumptions at work in the case. Further, I'm not convinced that attorneys, brokers, and title companies should be protected against liability claims of all non client plaintiffs. I think there are some people who legitimately and foreseeably rely upon the work of the professionals in these categories, even though they are not clients. Some of the value of the professional work lies in this reliance, and the reliable work is part of what the clients are paying for. Aren't there some cases in which the professional should be liable to foreseeably relying third parties? I don't think this is one of those cases, but one might make an argument, based upon the close pre-existing relationship between the husband and the law firm, that it is. What do you think? Ed.

ATTORNEY/CLIENT; DUTY OF CARE: Disappointed beneficiary of unexecuted will cannot sue attorney for malpractice based upon attorney's negligent failure to prepare will in a timely fashion or follow up to insure its execution in light of testator's illness and imminent death. Radovich v. Lock-Paddon, 41 Cal. Rptr. 2d 573 (Cal. App. 2d 1995).

Husband and wife married in 1957. They executed a pre-nuptial agreement at that time that negated all rights in one another's property as community property, and in 1974 husband executed other documents establishing that he made no community property claim in certain farming partnerships that wife held with her sister. Both documents were prepared by the same law firm that was involved in the preparation of the will in question in this case, and the law firm had represented both husband and wife, separately and together, over the years. That firm also prepared a will for husband in 1985 in which he again reiterated that there was no community property. Wife's will, executed in 1973, and also prepared by the law firm, made husband an income beneficiary for life of a trust, but there were several other beneficiaries with whom husband would share.

In June of 1994, husband and wife came to the law firm and disclosed that wife was undergoing chemotherapy treatments for cancer and desired to change her will to provide a more substantial life income for husband, and also to change residuary beneficiaries. She indicated that she would want to review the terms of the will with her sister. The law firm took three and one-half months to deliver the draft of the will to her. It then failed to follow up or contact her for the two and one-half remaining months prior to her death from cancer. Husband sued for malpractice and breach of duty on a number of grounds. Many of them related to the law firm's prior failures to fully appraise him of the nature of his community property rights and the consequences of documents it prepared for him to sign. These claims were dismissed on the basis of the Statute of Limitations, and the court here affirms such dismissal.

The remaining claim for husband related to the alleged failure to behave in a diligent manner to see to the preparation and execution of the will. The court acknowledges that there is some basis in the alleged facts for such a claim, but holds that as a matter of law, on the alleged facts, law firm owed no duty to husband to see to it that the will was drafted promptly or that decedent promptly reviewed it and executed it. It acknowledges the existence of other California cases indicated that third parties who are intended beneficiaries of legal actions may have a right of action for attorney's negligence in carrying those actions out, and even leaves the door open for will beneficiaries to bring such an action in the appropriate case. But this case, the courts holds, is not that appropriate situation.

The court notes significant danger of conflicting duties when a lawyer has a duty to be "diligent and prompt" in arranging for the preparation and execution of a will and also has a duty to see to it that the will is carefully drafted, accurately reflects the decedent client's wishes, and has been fully reviewed and evaluated by decedent client. It cites some interesting cases in other jurisdictions in which the factual pattern presented arguably an even closer case than exists on these facts, and which no duty was found.

Comment 1: The underlying law in those other jursidictions might not be as favorable to plaintiff as the underlying law in California. But the court here turns its back on the California precedent. The bottom line on the liability claim seems to be that California cases are becoming flatly more conservative in their view of the extent of professional duty to non-parties.

Comment 2: Although there is no liability here, the case nevertheless underscores a significant concern with which probate lawyers are beginning to grapple - the problem of conflicting interests in family owned business.

Lawyers, of course, are loathe to refuse services to persons involved in long standing client relationships, and many of the reasons for this concern relate to the best interests of the client. On the other hand, when various parties in the family business have potentially conflicting interests in the disposition of certain property at death, or in certain marital property determinations, is it appropriate for the lawyer to continue representation of all the interests, even when the parties consent? The more obvious conflict of interest questions in this case may have been disposed of by the Statute of Limitations, but didn't the conflict between the lawyer's duty to insure "full understanding" and the duty to provide "diligent processing" that the court seeks to avoid in its decision already exist here, where both husband and wife were long standing clients?