"Ethics" Often Determines Legal Duties to Non-Clients
LACBA Update, February 2005

By Phillip Feldman, member, LACBA Professional Responsibility and Ethics Committee. Feldman defends lawyers before the State Bar and testifies as an expert witness in legal malpractice matters. The opinions expressed are his own.

Duty is opined by courts as a matter of law. Weirum v. RKO General Inc. (1975) 15 Cal 3d 40. A lawyer's duties to non-clients turn on balancing various policies including the burden to the legal profession. Lucas v. Hamm (1961) 56 Cal 2d 583. Many decisions arise in the probate/elder law setting. In "Borissoff: Attorney Duties Can Run to Third Party that Legislature Determines Assumes Rights, Powers of Original Client," which ran in this column in November 2004, author David Brandon analyzed purely "legal" determinations in third party duty cases. "Ethics" is not always the primary basis.

Some decisions also weigh lawyers' duties to exercise their independent professional judgment, which is usually considered part of professional responsibility (ethics). When the attorney's conduct is affected by conflicting interests, loyalty to the client, and not confidentiality, is decisive. Flatt v. Sonoma County (1994) 9 Cal 4th 275. A nationally cited, non-probate, conflict-of-interest decision, Flatt held a lawyer's primary duty to an existing client precluded even advising a conflicting prospective client about imminent time bars. "The dispositive principle ... (was) derived from the well established ethical stricture against attorney conflicts of interest embodied in rule 3-310 of our Rules of Professional Conduct" and the biblical injunction against serving two masters.

Radovich v. Locke-Paddon (1995) 35 Cal App 4th 946 decided that where decedent died intestate, the lawyer owed no duty to her spouse. "The imposition of liability ... could improperly compromise an attorney's primary duty of undivided loyalty to his or her client, the decedent."

Moore v. Anderson Zeigler (2003) 109 Cal App 4th 1287 sustained a dismissal of beneficiary's complaint against the will-drafting lawyer. His client allegedly lacked capacity because of weakness and terminal illness. The court held that so long as the lawyer's experience and observations suggested his client had testamentary capacity, disappointed heirs may not lay claim against him since he fulfilled his duty of loyalty to the testator.

In Featherson v. Farwell (2004) 123 Cal App 4th 1022, the hospitalized client directed her lawyer to prepare a deed transferring her residence to her daughter. The lawyer deliberately failed to timely record it. Dismissal was affirmed since the attorney was properly "being overly protective of his elderly client." A rule that imposed on the attorney "an obligation to act in [the beneficiary's] best interests would necessarily result in a breach of [the attorney's duty to the decedent], a classic example of divided loyalty."

The trial court in Boranian v. Clark (2004) 123 Cal App 4th 1012 found that decedent's lawyer was negligent when he drafted a will giving property to his client's boyfriend, knowing she was confused and terminally ill. The appellate court reversed. Loyalty to the testator is satisfied because whatever obligations are owed beneficiaries, "the lawyer's primary duty is owed to his client and his primary obligation is to serve and carry out the client's intentions." In claiming a lawyer improperly determined either his client's testamentary capacity or her intended beneficiaries, the lawyer cannot be placed "in an untenable position of divided loyalty." A rule may not "interfere with the attorney's ethical duties to his client or impose an undue burden on the profession."

Osornio v. Weingarten (2004) 124 Cal App 4th 304 extended Lucas and reversed dismissal against an attorney instructed to do a new will in favor of plaintiff as sole beneficiary. Decedent was dependent upon plaintiff as her care custodian, requiring independent attorney certifications pursuant to Probate Code Sec. 21351 (b). Because the lawyer failed to advise his client of the law, the gift failed. The court noted that carrying out his client's instructions would not "result in the attorney becoming preoccupied with the possibility of negligence claims from third parties." Unlike the cases cited above, "imposition of liability upon attorneys to advise ... clients [of potential gift disqualification] does not impose an undue burden on the legal profession."

Citing Restatement of Law Governing Lawyers, the court opined that "allowing the nonclient to recover from the lawyer [for negligently failing to benefit the client's intended beneficiary] may promote the lawyer's loyal and effective pursuit of the client's objectives."

Restatement Sec. 24 (2) states a lawyer's duty for diminished capacity and disabled clients, "for whom no guardian or other representative is available to act, must with respect to a matter within the scope of representation pursue the lawyer's reasonable view of the client's objectives or interests as the client would define them if able to make adequately considered decisions on the matter, even if the client expresses no wishes or contrary instructions."

"Fidelity" is shorthand for fiduciary duties and is a synonym for loyalty. Obviously, attorneys have no independent judgmental discretion to superimpose their values on testators' absolute right to determine the objects of their bounty.