The first element of a legal malpractice claim is an attorney-client relationship that establishes a duty of care owed to the client. However, this element has been expanded to include obligations owed to nonclients as well. Attorneys must not only be vigilant in the performance of their obligations to those who are undisputedly their clients, but also to any others who they know are, or who foreseeably could be, relying on the attorney’s work, representations or promises to take specific action.
Over the years, the courts have addressed legal malpractice claims against attorneys who were not only not representing the plaintiff, but were actually adversarial to the plaintiff. In the nonadversarial-type cases, the attorney may have prepared financial documents or reports for a client, which the attorney knew or should have known another party would rely on when making certain investment decisions. In the adversarial cases, the offending attorney is accused of making misrepresentations to opposing counsel/party in order to induce settlement or the completion of a transaction, or other negligent (not necessarily intentional) acts. Frequently, these nonclient legal malpractice claims are dismissed for lack of privity, but not always.
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