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Attorney Not Liable for Decisions of Infirm Client-an attorney whose elderly client changed his will, provoking the heirs to sue. A lawyer drafting a will has no duty to beneficiaries to check on the mental capacity of the client

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June 23, 2003

ATTORNEY NOT LIABLE FOR DECISIONS OF INFIRM CLIENT

The DCA rules in favor of an attorney whose elderly client changed his will, provoking the heirs to sue.

By John Roemer

Daily Journal Staff Writer

SAN FRANCISCO - A lawyer drafting a will has no duty to beneficiaries to check on the mental capacity of the client, a unanimous San Francisco appellate court has ruled in a case of first impression.

Friday’s opinion means disappointed heirs can’t sue for malpractice a lawyer who helps a client change a will, even if the client’s testamentary capacity is questionable.

Extending a lawyer’s duty of care beyond the client to the beneficiaries would place an intolerable burden on attorneys, said Presiding Judge J.

Anthony Kline of the 1st District Court of Appeal.

Joining in Kline’s opinion were Justices Paul R. Haerle and James R.

Lambden. Moore v. Anderson Zeigler, 2003 DJDAR 6717.

“Not only would the attorney be subject to potentially conflicting duties to the client and to potential beneficiaries, but counsel also could be subject to conflicting duties to different sets of beneficiaries,” Kline wrote.

The case arose after a wealthy Sonoma businessman, Clyde P. Smith, the founder of Argonaut Constructors in Santa Rosa, became terminally ill, was placed on powerful medications and was hospitalized.

Attorney Rob Disharoon, of Santa Rosa’s Anderson Zeigler Disharoon Gallagher & Gray, knew Smith was ill and weak. Even so, he drafted new documents fundamentally changing the distribution of Smith’s estate among his nine adult children.

On June 21, 2000, Smith signed the will. He died two days later.

After probate litigation among the family members settled, four of the children sued Anderson Zeigler for malpractice.

Their complaint alleged that “a competent attorney would have recognized that litigation between the children was likely unless the attorney took reasonable steps to investigate, confirm and document the client’s capacity, competence and testamentary intent.”

Kline noted that “no California case directly addresses the duty question in the alleged incapacity context presented here.” The panel reached beyond California, taking guidance from the Restatement Third of Law Governing Lawyers, an influential treatise published by the American Law Institute. It wrote: “Making lawyers liable to nonclients ...

could tend to discourage lawyers from vigorous representation.” The Massachusetts Supreme Court reached a similar conclusion in Logotheti v.

Gordon, 414 Mass. 308 (1993), the panel’s research showed.

“It may be that prudent counsel should refrain from drafting a will for a client the attorney reasonably believes lacks testamentary capacity or should take steps to preserve evidence regarding the client’s capacity in a borderline case,” Kline wrote.

“However, that is a far cry from imposing malpractice liability to nonclient potential beneficiaries for the attorney’s alleged inadequate investigation or evaluation of capacity or the failure to sufficiently document that investigation.”

Defense lawyer Michael D. Senneff pointed out that the plaintiffs had a remedy in probate court, where issues of competence are frequently tried.

“There, the estate lawyer would have been a witness, not a party. But the plaintiffs chose to settle that litigation and sued the lawyer instead,” said Senneff, of Santa Rosa’s Senneff Freeman & Bluestone.

Michael L. Boli of Alameda, who represented the plaintiffs, said that after 20 years of legal malpractice work, “I felt it was time to try to push the boundaries of the lawyer’s duty. But I didn’t succeed.”

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