Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

No Privity? No Problem!
Successor Representatives and the Attorney-Client Relationship

Ordinarily, an attorney may only be sued for malpractice by clients with whom the attorney has privity of contract.  However, when it comes to representatives of probate estates, that rule does not always apply.  On October 18, 2011, the First District Court of Appeal held that a successor representative can sue the predecessor representative’s attorneys for malpractice.  (Smith v. Cimmet (2011) 2011 WL 4923464.)

In Smith, two California attorneys were hired by an Oregon probate representative to sue the deceased’s former business partner.  When the probate representative was replaced in the Oregon probate proceedings, the new representative refused to substitute into the California lawsuit and the case was dismissed.  The new representative subsequently sued the two California attorneys for malpractice.  The attorneys defended the malpractice suit by contending the new probate representative lacked privity of contract with the attorneys, and therefore could not sue for malpractice.  The trial court granted the attorneys’ motion for judgment on the pleadings, based in part on the fact the new representative had no attorney-client relationship with the attorneys, as that relationship was with the prior representative.

The appellate court noted that a probate estate is not an entity capable of forming its own attorney-client relationships or contracts with attorneys.  Only the personal representatives of the estate can form such relationships.  Thus, the court acknowledged that there was no direct attorney-client relationship between the new representative and the attorney defendants.  Nevertheless, finding that California’s probate statutes give successor representatives the same powers and duties as their predecessors, the court held that the lack of an attorney-client relationship or contractual privity between the new representative and the attorneys did not bar the representative’s malpractice claim. 

Citing Borisoff v. Taylor & Faust (2004) 33 Cal.4th 523, 531, the court held that the successor trustee must have standing to sue the predecessor’s attorneys if there is to be an effective remedy for malpractice that harmed the estate.  The court found allowing such malpractice claims furthered a key policy concern – the regulation of California attorneys.  Holding that the threat of sanctions was “no substitute for an action for damage,” the court questioned the efficacy of administrative disciplinary proceedings as a means of ensuring representative’s attorneys act for the benefit of the estate.  Accordingly, attorneys representing estate representatives would be wise to keep in mind this exception to the general rule of contractual privity. 

-- Jack Leer


**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis.  Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**