Malpractice and the Estate, Trust, and Probate Attorney: An Ounce of Prevention
by Patrick M. O’Leary and Teresa M. Niederwimmer
(County Bar Update, June/July 2005, Vol. 25, No. 6)


Malpractice and the Estate, Trust, and Probate Attorney: An Ounce of Prevention


By Patrick M. O’Leary, general counsel, and Teresa M. Niederwimmer, claims manager, Court Bond Mutual Insurance Company


Almost one in 10 legal malpractice claims arises in the practice areas of estate, trust, and probate law.1 Moreover, a whopping 85 percent of all claims are filed against firms with 10 or fewer attorneys.2 Despite these statistics, you can greatly reduce your risk of a claim by following five simple but very important guidelines:


Understand the parameters of your attorney-client relationship. Understanding the attorney-client relationship involves knowing who your client is, what you are being asked to do, and when the relationship begins and ends. An attorney-client relationship may be implied by the conduct of the parties. If a person seeks your advice on a matter within the usual professional competence of an attorney, and you give that advice, an attorney-client relationship is implied. There is no requirement of a written contractual agreement between you and the client, or that you be paid for services rendered before you can be sued for malpractice regarding those services.


Identify potential conflicts of interest, and deal with them head-on. Common fact patterns that often raise conflict of interest concerns for probate and estate planning attorneys include the following:

—Preparing joint wills for a husband and wife whose interests may not be the same.

—A child, who is a former client, bringing a parent to you for the purposes of estate planning.

—Representing a client who is both the personal representative and a beneficiary of an estate.

—Representing more than one claimant in an estate with adverse interests.

—Representing a claimant who is challenging the document(s) you drafted.


Always be clear both in your own mind and in communications with the client about whom you represent and in what capacity. For instance, if a personal representative is also a beneficiary, you should only represent that person in one capacity, not both. Advise the client about the other, unprotected interests, and that it is appropriate to have separate counsel to advise on that interest. Avoid falling into the trap of creating an unwanted attorney-client relationship by giving advice to the client on matters outside your scope of representation.


Always disclose all potential conflicts to your client(s) and get written permission to proceed. Even if the client acquiesces, you must withdraw if a potential conflict becomes an actual conflict, or advise the client again on the nature and potential risk to the client of the now-actual conflict and obtain a new waiver.


Generally, it is better to deal with conflicts of interest at the outset of the engagement. If an actual or potential conflict is identified at the inception of the relationship, it will be easier to address the conflict either by obtaining the client’s informed consent to the representation or by declining to accept the engagement, thereby avoiding exposure to liability.


You may owe a duty to certain nonclients. California courts hold, as a general rule, an attorney has no professional obligation to nonclients.3 However, probate and estate planning attorneys could be subject to additional liability if their actions or inactions affect nonclients. An exception to California’s general rule can arise in certain circumstances where the nonclient was the intended beneficiary of the attorney’s services.4 The lack of privity will not necessarily preclude an intended beneficiary under a will or trust from maintaining an action against the testator’s attorney on either a contractual theory of third-party beneficiary or a tort theory of negligence.5 Whether liability extends to nonclients involves balancing various factors, including, but not necessarily limited to:

—The extent to which the transaction was intended to affect the nonclient.

—The foreseeability of harm to the nonclient.

—The degree of certainty that the nonclient suffered injury.

—The closeness of the connection between the attorney’s conduct and the injury suffered.

—The moral blame attached to the attorney’s conduct.

—The policy of preventing future harm.6


Practice safe communications. The best way to avoid misunderstandings and future claims is to communicate fully and effectively with your clients. Use an engagement letter to set the parameters of representation and to clearly establish fees and billing procedures. The letter should spell out specifically whom you represent and for what purpose/matter. If the clients have other possible causes of action that you are not representing, specifically state what they are, advise on the risks of any statute of limitations issues, and advise the clients it is necessary to take action on their own behalf or obtain other counsel to do it for them if they wish to pursue those actions.


If you decide not to accept a new client or a new matter for an existing client, send a nonengagement letter declining the representation. Urge the individual to seek other representation, especially if a deadline is imminent. If a statute is blown and you failed to communicate a sense of urgency, you may be liable.


Finally, if you decide to terminate an existing representation, send a disengagement letter so there is no misunderstanding that the representation has ended.


Make sure you possess the required skill and knowledge for the task. Failure to exercise the required skill and knowledge for the task is the most commonly alleged error in malpractice claims. If you are not sure you possess the requisite skill and knowledge to adequately serve your client’s needs, either obtain the expertise or refer your client to another attorney.


If you obtain expertise by employing additional counsel, be sure to get written permission from your client. This means the client must be advised of the specific individual the lawyer is considering and consent must be obtained prior to hiring. Merely having a general clause in the fee agreement granting the lawyer ostensible authority to hire experts or co-counsel is insufficient. Additionally, in a joint representation, each attorney assumes joint responsibility, and the overall fee must be reasonable.


When it comes to malpractice claims, an ounce of prevention can save you significant time, money, and aggravation down the road, not to mention your reputation. Developing good habits and following these simple guidelines can go a long way in helping you avoid liability.


1Profile of Legal Malpractice Claims: 1996-1999, ABA Standing Committee on Lawyers’ Professional Liability.

2Lawyer Statistical Report: The U.S. Legal Profession in 1995, American Bar Foundation (1999).

3Vapnek et al., Cal. Practice Guide, Professional Responsibility, The Rutter Group (2002) ¶ 6:240.

4Lucas v. Hamm, 364 P.2d 685 (1961).

5Bucquet v. Livingston, 57 Cal.App.3d 914 (1976).

6Id. at 921.


This article is intended to inform the reader of potential liability exposures for attorneys. This article reflects general principles only and does not render legal advice. Readers should consult legal, financial, insurance and other advisors if they have specific concerns. Neither the Los Angeles County Bar Association, Aon, the Court Bond Mutual Insurance Company and its affiliates, nor the authors assumes any responsibility for how the information in this article is applied in practice or for the accuracy and completeness of the information. Reproduction without written permission is prohibited. This article is made available to LACBA by Aon Direct Insurance Administrators, administrator/broker of the LACBA Sponsored Aon Insurance Solutions Program for the LACBA members.

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