Lawyer Has No Duty to Non-Clients Unless Client’s Intent is Definite
When a 100-year-old grandmother died, she left a $40 million estate to her three children, but three of her grandchildren had been disinherited in previous documents. After her death, one of her sons sued his mother’s attorney and the attorney’s law firm for malpractice. He argued the attorney had a duty to specifically prohibit one of her sons from leaving his part of the estate to his children -- the disinherited grandsons.
A unanimous three-justice panel from Division Two of the California Court of Appeal’s Second District affirmed the ruling of Los Angeles County Superior Court Judge Patricia Nieto on February 23. Nieto had ruled that the defendant attorneys owed no duty to inform the relatives, who were not actually clients of the law firm, about any amendments that did not conform to previous wills.
The opinion, authored by Justice Brian M. Hoffstadt, began with a recitation of relevant trust and estates law. It quoted precedent that ruled that a lawyer who was hired to draft a will must “use such skill, prudence, and diligence as members of profession commonly possess and exercise.” A lawyer who fails to do so can be sued by the client for malpractice. In the present case of Bruce Gordon et. al. v Ervin, Cohen and Jessup LLP, one of the sons of Claire, Bruce, (all Gordons will be referred to by their first names for clarity), sued his mother’s attorney for malpractice. But he was not a client of the firm.
Precedent defines exactly when non-clients such as Bruce can sue, clarifying that malpractice toward a non-client can only occur if the client’s intent to benefit the nonclient is “clear,” “certain” and “undisputed.” The opinion then poses the case’s key question: When is that standard met, thus giving rise to a duty to nonclients?
Claire Gordon amended her will and trust 12 times, both before and after the death of her husband Arnold. The couple had three children, Jeffrey, Kenneth, and Bruce, the plaintiff/appellant in this case. The size of the estate and the will and trust provisions were complex before Arnold died, and they grew increasingly more complex after his death. Basically, the original trust split the estate of property, commercial property and stocks into three sub-trusts, with each son getting one-third.
Arnold died in 1986, and between 1997 and 2006, Claire changed her will several times, finally disinheriting all of Kenneth’s sons in 2016. Claire did not inform Kenneth about the disinheritance until 2014 or 2015 because she wanted to retain her “close relationship” with him. She did not tell Bruce until 2016. But Claire did not specifically forbid Kenneth from leaving his share of the property to his disinherited sons.
In addition, the operating agreements of the limited liability companies (LLCs) in the trust drafted by attorney Reeve Chudd contain restrictions on what each member can do with his shares. It differentiates between the “economic interests” and the “membership interests” of each of the three sons. Economic Interests, the trust says, can be transferred to anyone, but Membership Interests, which include the right to vote, can only be transferred “with the consent of all other Members.” Unanimous consent is not needed if the transfer is made to descendants of the marriage of Claire and Arnold. Justice Hoffstadt explained that “nothing in the operating agreements prevented Kenneth (or any of the other sons) from transferring their interests to their children.”
When Claire died, Bruce and his sons sued Chudd, a partner in Ervin Cohen & Jessup, for malpractice because the operating agreements did not follow Claire’s intent to disinherit Kenneth’s three children from inheriting any interests, including any that Kenneth left to them. If Chudd had done so, Bruce, not Kenneth’s children, would get the shares that passed to Kenneth.
The trial court granted summary judgment to Chudd and his law firm. Judge Nieto said that Bruce had presented “no evidence of Claire’s intent to disinherit Kenneth’s children from obtaining membership interests in the LLCs.” Therefore, no duty was owed to the plaintiffs to “effectuate that intent.” Plaintiffs appealed.
Hoffstadt then discussed whether summary judgment was an appropriate ruling by the trial court. He framed the issue as a question of material fact about whether Chudd owed plaintiffs a duty to “draft the LLC operating agreements in a way that precluded Kenneth’s children from obtaining any interest.” In essence, was a duty owed to Bruce, a nonclient of the firm?
He then explained that the California Supreme Court has ruled that this duty exists “only if the client’s intent to benefit that third party is “clear,” “certain,” and “undisputed.” This is a very high standard, and one that the appellate court agreed had not been met. Precedent has clarified that a lawyer owes no duty to a nonclient when the client’s intent is not “abundantly clear.” In addition, a lawyer has no duty to a nonclient beyond “a client’s clear directive.” The courts have said anything less would be “bad public policy.”
Following these rulings, the Court of Appeals ruled that Chudd and his law firm “did not owe plaintiffs a duty to draft the LLC operating agreements in a way that disinherited Kenneth’s children because Claire’s intent to disinherit was not as a matter of law ‘clear, certain or undisputed.” Claire’s intent was not certain and she never told Chudd she wished to prevent Kenneth from passing his share of her estate to his children. Whatever Bruce inferred did not meet the court’s high standard. Claire’s complex distribution plan would make a “lawyer’s malpractice liability to nonclient plaintiffs turn on questions that would inevitably be subject to factual dispute.” This would be “an intolerable burden,” the opinion stated.
For all these reasons, the court ruled that summary judgment was properly granted. Bruce and his sons will just have to survive with their one-third share of the Gordon family’s $40 million estate.