By Steven H. Schwartz and Stacey Tallman
In 1995, the Missouri Supreme Court created a vague and difficult to apply test for determining when a non-client can sue a lawyer for malpractice. Donahue v. Shugart, Thomson & Kilroy, P.C., 900 S.W.2d 624 (Mo. banc 1995). Donahue involved a suit by intended beneficiaries of a failed testamentary transfer. The Court reasoned that, unless the intended beneficiaries could sue the lawyers who were negligent in failing to complete the transfer, there would be no remedy for the negligent act, but the Court did not limit suits by non-clients to intended beneficiaries of failed testamentary transfers. Instead, the court held that a non-client could sue a lawyer in any case when a two-part test is met. First, the attorney must be retained by a client to benefit the non-client plaintiff. Second, the attorney must owe a legal duty to the non-client plaintiff. This duty is determined by weighing six factors:
(1) the existence of a specific intent by the client that the purpose of the attorney’s services were to benefit the plaintiffs; (2) the foreseeability of the harm to the plaintiffs as a result of the attorney’s negligence; (3) the degree of certainty that the plaintiffs will suffer injury from attorney misconduct; (4) the closeness of the connection between the attorney’s conduct and the injury; (5) the policy of preventing future harm; (6) the burden on the profession of recognizing liability under the circumstances. This two-part test is virtually impossible for a practitioner to apply because it requires the balancing of six general factors. There is no way for a practitioner to know how a court may apply the factors in some future litigation so lawyers always have to be concerned about how their advice to a client may affect others.
In a recent case, the Missouri Court of Appeals for the Western District limited the effect of Donahue by clarifying when the client’s intent should be analyzed under the first-part of the Donahue test. The Court refused to allow suits by non-client prospective beneficiaries of undrafted and unexecuted testamentary documents because the client’s intent related to those unfinished documents could change. Alberts v. Turnbull Conway, P.C., ___ S.W.3d. ___, 2022 WL 24066 (Mo. App. W.D. January 4, 2022). In Alberts, non-client prospective beneficiaries sued a lawyer for legal malpractice because the lawyer failed to draft and secure the execution of a deceased client’s testamentary documents. The client instructed the defendant attorney to change his trust to provide certain distributions to the non-client plaintiffs, but the client’s health quickly deteriorated, and the client died before the trust was amended.
In analyzing the Donahue test, the court explained that the client’s intent to benefit a non-client is inherent when the non-client is designated as a beneficiary in a signed testamentary document, whereas the client’s intent is speculative when the testamentary document is unsigned. The court also reasoned that imposing a duty on attorneys to non-client prospective beneficiaries would undermine the undivided duty of loyalty to the client and would create a potential conflict of interest because an attorney may rush or exert undue pressure on the client to execute a testamentary document if the attorney could be held liable to prospective beneficiaries.
While the Alberts Court declined to extend an attorney’s duty of care to non-client prospective beneficiaries where the alleged negligence relates to failure to promptly draft and secure testamentary documents, it did note that different considerations may arise when an attorney negligently advised a client that it was unnecessary to execute testamentary instruments or that it was unnecessary to amend existing testamentary instruments to achieve the client’s testamentary intent. As such, this test may still be difficult to apply when these situations arise.