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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<a href="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2014/09/Divorce-Decree.jpg"><img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-1118" alt="Divorce Decree" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2014/09/Divorce-Decree-300x199.jpg" width="300" height="199"></a>After winning more than $250,000 at trial, the fianc&eacute;e&nbsp;of a deceased postal worker came up short in the District of Columbia Court of Appeals based on lack of privity between her and the&nbsp;lawyers who mishandled the decedent&rsquo;s divorce.
In <a href="http://www.dccourts.gov/internet/documents/12-cv-1474.pdf">Scott v. Burgin</a>, the fianc&eacute;e&nbsp;and the decedent had lived together for years, and he had filled out forms to make her the beneficiary of his Post Office retirement benefits.&nbsp; In January 2006, the fianc&eacute;e&nbsp;met with a lawyer, asked him to handle decedent&rsquo;s divorce from his wife, and discussed the pension issue with him. &nbsp;By then, decedent already had terminal bone cancer.
A year later,&nbsp;decedent himself met with the lawyer, and signed a retainer agreement &mdash; but it took 11 more months and repeated contacts from the fianc&eacute;e&nbsp;before&nbsp;the lawyer finally served a&nbsp;divorce complaint on decedent&rsquo;s wife.&nbsp;&nbsp;When decedent died in April 2008, he was still married, and therefore the Post Office denied the fianc&eacute;e&rsquo;s&nbsp;claim to survivor benefits.&nbsp;&nbsp;The benefits went to&nbsp;decedent&rsquo;s wife, instead.
Reversing the trial court, the court of appeals held that the fianc&eacute;e&nbsp;lacked standing and was not within the&nbsp;lawyer&rsquo;s &ldquo;ambit of care.&rdquo;&nbsp; Reciting the well-established rule, the court said that lawyers have duties to their clients, not to third parties.&nbsp; But notwithstanding a lack of privity, third party claims can be sustained where the malpractice plaintiffs are the direct and intended beneficiaries of the lawyer&rsquo;s services.
The classic situation, the court held, arises in the context of will-drafting, where the lawyer has a duty of care to the intended beneficiaries, and the beneficiaries have a direct benefit consisting of a legally enforceable right to their inheritance.&nbsp;&nbsp;&nbsp;In contrast, the court said, a divorce decree does not provide a direct benefit to the fianc&eacute;e&nbsp;of the divorcing client. &nbsp;Rather, the aim of the divorce is the end of the marriage, and the only parties directly concerned are the married couple and their minor offspring.
If the fianc&eacute;e&nbsp;were allowed to recover here, the court said, it would expose lawyers to &ldquo;unforeseen and unmanageable liability&rdquo; to anyone who would indirectly benefit from the end of the client&rsquo;s marriage &mdash; such as a frustrated creditor whose debtor would have been paid but for the mishandled divorce.
The take-away from this case: &nbsp; The trend in modern cases is to recognize that a lawyer has a duty of care that can extend beyond those strictly in privity with the lawyer-client contract. &nbsp;But different jurisdictions approach the question in different ways that can result in different outcomes. &nbsp;The District of Columbia Court of Appeals in Scott cited and distinguished the intended-beneficiary situation, and thus the lawyer escaped liability. &nbsp;The intended-beneficiary exception to the rule of privity is common across the U.S. &nbsp;But other jurisdictions have considered or adopted different approaches, such as California&rsquo;s multi-criteria balancing test, set out in 1961 in <a href="https://www.courtlistener.com/cal/6VMn/lucas-v-hamm/">Lucas v. Hamm</a>. &nbsp;Therefore, evaluating your risk of exposure to claims from third parties requires careful analysis.
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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Lack of privity sinks fiancée’s suit against divorce lawyer