Hofstra Law School Class #6 & 7
(Updated Jan. 8, 2012)
Remember the Savings Bank v. Ward decision from Class #1? That case stands for the proposition that there must be a contractual relationship or “privity” between client and a lawyer before the client can sue the lawyer for malpractice. In other words, no one outside of the client-lawyer relationship can sue. That stringent ruled prevailed in most states, and the only exceptions to the privity bar was fraud and collusion. But the privity barrier in legal malpractice cases has fallen, to a lesser or greater degree, in most jurisdictions. Some states have banished privity entirely. Most have modified it in various ways. What seems to have developed is something of a spectrum along which the states line up between two poles which might be called “pro-privity” and “anti-privity”. There are plenty of in between, which seem to vassilate between those two extremes. During the course of the next two classes, we’ll see how in the words of Judge Cardozo, in Ultramares Corp. v. Touche, 255 N.Y. 170, 180, 174 N.E. 441, 445 (1931) the “assault upon the citadel of privity” has progressed to the point where it almost seems that our adversary system of justice has been turned on its head. More on that to come…
Let’s see where we are today and how and why over the years the “citadel of privity” that once immunized lawyers from liability has gradually, but most assuredly, fallen piece by piece.
Restatement of Law Governing Lawyers
The Traditional Rule
Buckley v. Gray, 110 Cal. 339, 42 P.900 (1895)
The traditional exceptions to privity: fraud and collusion
The Assualt on Privity Begins
The Balancing of Factors Test
Third Party “Beneficiaries”
Duties to Adversaries
New Jersey: Petrillo v. Bachenberg, 139 N.J. 472 (1995)
Other Ways to Dodge the Privity Barrier
As you can see, the bastion of privity, which has insulated lawyers from liability has taken some pretty hard hits. Do you think there’s anything left of privity? Does it offer negligent lawyers refuge anymore?What do you think? Please let us know your thoughts. Post a comment or tow on any of the cases. Just click the Comment button.
Posted in: CLE & Law School Course