Malpractice Melee: Fending Off the Disgruntled and Disappointed, An Estate Planner’s Field Guide

Abstract

Discusses state law governing when and under what circumstances a nonclient beneficiary of an estate plan may sue the drafting attorney for malpractice generally breaks down into three categories: (1) states that adhere to the strict rule of privity of contract; (2) states that, at least ostensibly, apply a balancing of factors test; and (3) states that apply a (supposedly) narrower, third-party beneficiary rule. Part II analyzes the application of these rules and the billing for these rules by the courts applying them. Part III addresses the ethical rules on conflicts of interest in the context of estate planning. Part IV discusses problems that can arise for estate planning attorneys who represent clients in matters in states other than the state in which the lawyer is admitted to practice. Problems arise when a client moves to a new state and asks her existing attorney to continue to provide estate planning advice or when the client has business, real estate, or other matters in another state. The question for the attorney is whether they may be engaged in the unauthorized practice of law. Finally, Part V addresses another problem that arises frequently for estate planners; that is, a client who has diminished capacity or may potentially be subject to undue influence. Overall discusses what the lawyer can or cannot do when confronted with these problems.