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plaintiffattorneylawyermalpracticewillduty of care
plaintiffattorneylawyermotionmalpracticewillpower of attorneyduty of care

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Friske v. Hogan, 698 N.W.2d 526, 2005 S.D. 70

Facts

Doug and Jeanne Friske hired attorney Timothy Hogan in 2002 to draft their wills. Doug's will devised certain real and personal property to his children, subject to a life estate for Jeanne. After Doug's death in 2003, the Friske children discovered that two parcels of real property were held in joint tenancy with Jeanne, which meant those properties passed to her by operation of law, rendering Doug's will ineffective for those parcels. The Friske children then sued Hogan for malpractice, claiming he failed to ensure the property was titled correctly.

Doug and Jeanne Friske each had children from prior marriages. In 2002, they hired Hogan to draft their wills and power of attorney documents. Hogan drafted separate wills for each of them. Doug's will devised certain real and personal property to his children, subject to a life estate for his wife, Jeanne. Doug also appointed Jeanne as the personal representative of his estate. Doug reviewed, approved and executed the will, on or about February 15, 2002.

Issue

Whether nonclient beneficiaries under a will can maintain a malpractice action against the attorney who drafted the will, and whether the exception to the strict privity rule should be applied prospectively and retroactively.

Whether nonclient beneficiaries under a will can maintain a malpractice action against the attorney who drafted the will and, if so, should the exception be applied both prospectively and retroactively.

Rule

Generally, to maintain a malpractice action against a lawyer, a plaintiff must show that an attorney-client relationship existed. However, an exception to the strict privity rule allows nonclient beneficiaries to maintain a malpractice action if the attorney knew that the client intended to benefit them as a primary objective of the representation.

Generally, in order to maintain a malpractice action against a lawyer, 'a plaintiff must first show that an attorney-client relationship existed between the lawyer and the plaintiff.'

Analysis

The court found that the Friske children were identifiable beneficiaries under Doug's will and that one of Hogan's primary objectives was to benefit them. The court concluded that Hogan owed a duty of care to the Friske children, which did not impair his obligations to Doug. The court also noted that the absence of such a duty would make enforcement of Hogan's obligations to Doug unlikely, thus justifying the exception to the strict privity rule.

Here, the Friske children are identifiable beneficiaries under Doug's will and one of the primary objectives of Hogan's representation was to benefit them. Under these circumstances, Hogan owed a duty of care to the Friske children. This duty of care did not significantly impair or compromise Hogan's ability to perform the obligations that he owed to his client, Doug.

Conclusion

The Supreme Court affirmed the circuit court's decision, allowing the Friske children to pursue their malpractice claim against Hogan, recognizing the exception to the strict privity rule applied both prospectively and retroactively.

We affirm.

Who won?

The Friske children prevailed in the case because the court recognized their right to sue Hogan for malpractice despite the lack of a direct attorney-client relationship, based on the established exception to the strict privity rule.

The Honorable Robert A. Miller, Retired Justice, acting by appointment as Circuit Court Judge, granted the Friske children's motion.

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