The State of Ohio has long adhered to the concept of “strict privity” when determining whether a client or injured party may sue an attorney for professional malpractice. The rule of privity is founded upon the principle that an attorney owes duties of loyalty to the client alone and that expanding the concept of “privity” with third parties only weakens the duty of loyalty an attorney owes to his or her client. Recent Ohio Supreme Court challenges have sought to weaken the rule of “privity” in an attempt to expand the scope of permissible plaintiffs in legal malpractice actions. One obvious target: the beneficiaries of a will prepared by an attorney for the decedent.

It is well-established in Ohio that the beneficiary of an estate cannot bring a legal malpractice lawsuit against the attorney who drafted the decedent’s will. This “strict privity” rule places Ohio in the minority of jurisdictions throughout the country as most states allow beneficiaries to bring such lawsuits primarily to promote accountability for attorneys in the practice of estate planning.

In light of the declination of the “strict privity” rule in other jurisdictions in the arena of estate planning, beneficiaries have often asked the Ohio Supreme to overturn its precedent which adheres to the strict privity requirement. In an effort to lay this issue to rest, in Shoemaker v. Gindlesberger, 118 Ohio St.3d 226, 2008-Ohio-2012, the Ohio Supreme Court recently reaffirmed its previous holding that the decedent’s attorney cannot be sued by the decedent’s beneficiaries with respect to errors in the preparation of the decedent’s will and other probate documents.

In Shoemaker, the plaintiffs were the beneficiaries of a will drafted by the defendant-attorney. The decedent had also retained the defendant to draft a deed which transferred title to her real property to one of the beneficiaries upon her death. Upon decedent’s death, the estate was forced to pay state and federal taxes on the land transfer. The beneficiaries brought a legal malpractice claim alleging that defendant had failed to advise the decedent of the tax consequences of the land transfer.

The trial court granted defendant’s motion for summary judgment based on the longstanding privity rule. The appellate court upheld the decision and the beneficiaries appealed to the Ohio Supreme Court. On appeal, the beneficiaries argued that Ohio’s privity rule was outdated and encouraged the insulation of malpractice claims against estate planning attorneys. The beneficiaries presented a survey of other jurisdictions that allow beneficiaries to bring malpractice claims against the decedent’s attorney. In rejecting this argument, the Court stated, “It is true that Ohio is in the minority of states retaining a strict privity rule, but Ohio was also in the minority of states when [the privity rule] was decided over 20 years ago.”

The beneficiaries urged the Court that an exception to the privity rule was necessary “to have attorney accountability in the area of estate planning and wealth transfer.” The beneficiaries posited that if an attorney is negligent in drafting a will, it is more likely the beneficiaries, as opposed to the decedent, who is harmed. Despite sound arguments presented to overturn the strict privity rule, the Shoemaker Court reaffirmed the privity rule in legal malpractice cases founded upon allegedly faulty estate planning by the decedent’s attorney. The Court reasoned that if the rule is overturned, the threat of potential lawsuits from non-client third parties would diminish the quality of legal services supplied to the actual client. Under such a scenario, the Court predicted that the attorney would have “conflicting duties and divided loyalties during the estate planning process.”

Interestingly, in a proposed solution to preventing shoddy work by estate planning attorneys, the Court questioned the possibility of the estate’s representative, rather than the beneficiaries, bringing suit against the decedent’s attorney. Though the Court specifically stated that the beneficiaries may not pursue such an action under the privity rule, it opined that allowing the estate’s representative to bring such a claim “may well be a solution to the problem, but it is a question for another day.” Though this dicta is not technically binding authority, it may give rise to claims by estate representatives such as executors and administrators against the allegedly negligent attorneys in relation to the representation of the decedent. Thus, though the Shoemaker decision officially negated the beneficiaries’ attempts to sue the decedent’s attorney for malpractice, it may have opened the door for the estate’s representative to bring such a lawsuit.

For further information or questions regarding the practical impact of the Shoemaker decision or the “strict privity” rule in other contexts, contact one of our Professional Liability Practice Group members

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