Simon v. Zipperstein
32 Ohio St. 3d 74, 1987 Ohio LEXIS 348, 512 N.E.2d 636 (1987)
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Rule of Law:
An attorney is immune from liability to third persons, such as the intended beneficiaries of a will, arising from their performance as an attorney in good faith on behalf of a client, unless such third person is in privity with the client or the attorney acts maliciously.
Facts:
- A father hired an attorney to prepare his will.
- The will was intended to name the father's son as a beneficiary.
- The attorney allegedly drafted the will negligently.
- After the father's death, the alleged negligence in the will's preparation resulted in the son not receiving his intended inheritance.
- There was no attorney-client relationship (privity) between the son and the attorney.
Procedural Posture:
- The son (plaintiff) filed a legal malpractice action against the attorney in the trial court.
- The trial court dismissed the son's complaint, finding the attorney owed no duty to the son due to a lack of privity.
- The son (appellant) appealed to the intermediate court of appeals.
- The court of appeals reversed the trial court's judgment, creating a public policy exception to the privity rule.
- The attorney (appellant) appealed to the state's highest court.
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Issue:
In the absence of fraud, collusion, or malice, does an attorney owe a duty of care to the intended beneficiary of a will, allowing the beneficiary to sue the attorney for malpractice when no privity of contract exists between them?
Opinions:
Majority - Per Curiam
No. In the absence of privity, an attorney is not liable to a third party for malpractice unless there is evidence of fraud, collusion, or malice. The primary duty of an attorney is to the client, not to a non-client third party. To allow malpractice suits by third parties would create a conflict of interest, as an attorney might become reluctant to properly represent their client for fear of being sued by others. The court explicitly reaffirms its holding in Scholler v. Scholler, stating that a beneficiary is a third party who lacks privity with the client (the testator) and therefore cannot sue the attorney for negligence in drafting the will.
Dissenting - H. Brown, J.
Yes. An attorney who negligently drafts a will should be liable to the intended beneficiaries. The privity requirement is an outdated legal relic that has been abandoned in most other areas of tort law, such as product liability and medical malpractice. In the specific context of will drafting, the testator's entire purpose is to benefit third parties, and the testator is deceased and unable to sue when the negligence is discovered. To deny the intended beneficiary a cause of action effectively immunizes attorneys from liability for negligent will preparation, an outcome that is contrary to public policy. The majority's concern about a conflict of interest is a 'mirage' because the client's interest is to have their testamentary intentions carried out correctly, which aligns perfectly with the beneficiary's interest.
Analysis:
This decision solidifies a strict privity rule for legal malpractice in Ohio, placing the state in a minority of jurisdictions on this issue. By refusing to create an exception for intended beneficiaries of a will, the court prioritizes the sanctity of the attorney-client relationship over providing a remedy for foreseeable third-party harm. The ruling effectively creates an immunity for attorneys who negligently draft wills, as the only party in privity (the testator) is deceased when the error is discovered. This decision stands in stark contrast to the modern trend in tort law, which has largely abandoned privity as a barrier to recovery for negligence.
