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Lawyer Malpractice Class #6 & 7 Lawyer Liability to Third Parties

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

§ 15.  A Lawyer’s Duties to a Prospective Client

§ 51.  Duty of Care to Certain Nonclients


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

Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958)

Lucas v. Hamm, 56 Cal. 2d 583, 364 P. 2d 685 (1962)

Heyer v. Flaig, 70 Cal. 2d 223, 449 P.2d 161 (1969)

Third Party “Beneficiaries”

New York:       Prudential Insurance Co. v. Dewey Ballantine, 80 NY2d 377 (1992)

New Jersey:    Banco Popular, N.A. v. Gandhi, 184 N.J. 161 (2005)

Duties to Adversaries

New Jersey:   Petrillo v. Bachenberg, 139 N.J. 472 (1995)

New Jersey:   Davin, LLC v. Daham, 329 N.J. Super54 (App.Div. 2000)


Martyn, S.R., “Accidental Clients” , 33 Hofstra L. Rev. 913 (2005)

Other Ways to Dodge the Privity Barrier

PA: Hedlund Mfg. Co. v. Weiser, Staper & Spivack 517 Pa.522 (1988)

NY: Oppel v. Empire Mutual Ins. Co. 517 F. Supp. 1305 (SDNY 1981)

NJ: Alcman Services Corp. v. Bullock 925 F. Supp. 252 (DNJ 1996)


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.

Prof. W. 

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