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NJ: Privity in an anti-Privity State?

Holvenstot v. Nusbaum, et al., N.J. App. Div., September 21, 2010 (Unpublished)

NJ: Underlying probate action

Facts: This action sought an appeal from an order granting Defendants’ motion for summary judgment and, thereby, dismissing Plaintiff’s complaint that sought damages from legal malpractice and misrepresentation. A malpractice claim was brought by Plaintiff based on services rendered by Nusbaum to Plaintiff’s mother prior to her death. Plaintiff claims that Nusbaum breached his duties to Plaintiff’s mother that, in turn, caused Plaintiff damages. A misrepresentation claim was based on an allegation that Nusbaum provided false information in opposition to a guardianship action that Plaintiff previously filed. Nusbaum provided a certification in opposition to the guardianship action that included a representation that Plaintiff’s mother executed a new will that disinherited him, which Plaintiff claimed was false.

Issue: Whether Plaintiff’s claims against Defendant for malpractice survive summary judgment?

Ruling: The Appellate Court held that Defendants were entitled to judgment as a matter of law on plaintiff’s legal malpractice claim, since there is no evidence that there was an attorney-client relationship or some independent basis for concluding that Nusbaum and his firm owed a duty to Plaintiff. The only facts relevant to Plaintiff’s relationship with Nusbaum and the firm are that Nusbaum represented Plaintiff in a municipal court matter previously, Plaintiff accompanied his mother when she sought advice from Nusbaum about property she owned, and that he was the intended beneficiary of her will.

However, by assuming responsibility for representing Plaintiff in municipal court, Nusbaum did not undertake a broader and ongoing duty to his former client in unrelated matters. Moreover, when an attorney undertakes preparation of a will, the attorney’s professional and fiduciary duties are owed to the testator and not the testator’s potential beneficiaries. Even when an attorney undertakes to represent the executor of a will, the attorney may not act in furtherance of the interests of the testator’s beneficiaries when those interests are inconsistent with the testator’s interest as expressed in the will.

Lesson: In order for a legal malpractice claim to survive summary judgment, there must be evidence of an attorney client relationship or some independent basis to show that a duty was owed. 

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Posted in: New Jersey, Privity