Stangland v. Brock

Goodloe, J.

(dissenting) — I dissent because I believe appellants have stated a sufficient cause of action to survive a dismissal motion under CR 12(b)(6). Appellants' allegations, as presumed to be true for purposes of a CR 12(b)(6) motion, state a viable claim for legal malpractice.

The majority correctly acknowledges that most other jurisdictions have held that an attorney who drafts a will for a client owes a duty of care to the beneficiaries of the will. See, e.g., Heyer v. Flaig, 70 Cal. 2d 223, 449 P.2d 161, 74 Cal. Rptr. 225 (1969); Lucas v. Hamm, 56 Cal. 2d 583, 364 P.2d 685, 15 Cal. Rptr. 821 (1961), cert. denied, 368 U.S. 987 (1962); Fickett v. Superior Court, 27 Ariz. App. 793, 558 P.2d 988 (1976); Ogle v. Fuiten, 102 Ill. 2d 356, 466 N.E.2d 224 (1984); McAbee v. Edwards, 340 So. 2d 1167 (Fla. Dist. Ct. App. 1976); Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983); Stowe v. Smith, 184 Conn. 194, 441 A.2d 81 (1981); see also Bowman v. John Doe, 104 Wn.2d 181, 186-88, 704 P.2d 140 (1985); R. Mallen & V. Levit, Legal Malpractice § 80 (2d. ed. 1981). Yet without denying the existence of such a duty here, the majority goes on to dispose of this case by holding that the respondent attorneys were not negligent as a matter of law because their conduct satisfied the applicable standard of care. See, e.g., Walker v. Bangs, 92 Wn.2d 854, 859, 601 P.2d 1279 (1979). In so holding, the majority usurps the jury's function. Once we determine that an attorney owed a duty to a particular plaintiff, it should be left to the jury to decide whether the standard of care was violated. See Cook, Flanagan & Berst v. Clausing, 73 Wn.2d 393, 396, 438 P.2d 865 (1968).

Appellants here allege that the respondent law firm, which holds itself out as an estate planning firm and had been providing services for many years to Ralph Schalock, violated the professional standard of care when its attorneys failed to draft Schalock's will to comport with his intentions and further failed to properly advise Schalock of the effect of a subsequent land sale upon the disposition of his estate. I believe these allegations state a cause of action upon which relief could be granted. First, appellants' allegations state a claim for negligence on the part of Norman Brock in the initial will drafting. The majority holds there can be no negligence here since Brock drafted the will to conform precisely to Schalock's intent that all of his real property be left to appellants. Yet, this ignores appellants' argument, consistent with the language in their amended complaint, that Schalock's intent was to pass to appellants the principal asset of his estate, which happened to be the farm at the time the will was drafted, regardless of what form that asset eventually took. Because the will as drafted by Brock passed only Schalock's "real property" to appellants, it was not consistent with this intent.

The majority reasons that it is unreasonable to expect Brock to have foreseen at the time he drafted the will that Schalock might eventually sell the farm on a real estate contract. However, a reasonably prudent lawyer, knowing that his client wanted to devise to certain beneficiaries the principal asset of his estate, in whatever form it existed, would not have narrowly designated the asset to be devised as "real property". Appellants' allegations, if proven true, could plausibly lead a jury to find that Brock's drafting of the will did not conform with the duty owed to appellants.

In addition, I would hold that appellants' allegations state a claim for negligence on the part of both Brock and Kenneth Carpenter for failing to advise Schalock of the effect of the real property sale on his estate plan. The majority determines that it would be unreasonable to impute to Brock knowledge of the real estate contract subsequently prepared by Carpenter or to impute to Carpenter knowledge of the will. I believe the majority perceives this issue too narrowly. Appellants assert that the firm's lawyers routinely received memos on new matters being handled in the firm. This suggests that Brock and Carpenter had not only imputed, but also actual knowledge of each other's respective legal matters. If these assertions are proven true, appellants could conceivably establish that Brock and/or Carpenter violated the standard of care by failing to advise Schalock of the potential effect of the real property sale on the disposition of his estate.

Further, even if appellants cannot prove that Carpenter had actual knowledge of Schalock's will, a jury could reasonably find that Carpenter violated the standard of care by failing to inquire about the potential effect of the real estate contract on Schalock's estate plan. The majority rejects this theory, reasoning that an attorney has no duty to inquire beyond those matters directly presented by the client. However, whether an attorney is negligent in failing to make certain inquiries ordinarily requires a factual determination. Hansen v. Wightman, 14 Wn. App. 78, 87, 538 P.2d 1238 (1975). In this instance, it should be left to the trier of fact to determine whether a duty to inquire existed. I believe a trier of fact could logically determine, based on the facts alleged, that when a member of a law firm which specializes in estate planning is involved in the sale of the only real property of value of a long-time client, that attorney has a duty to inquire about the potential distribution of that property.

Finally, I would hold that appellants' allegations state a claim for negligence on the part of the respondent law firm, viewed as a separate entity. Appellants' allegations suggest that Schalock's relationship with Brock and Carpenter could he viewed as part of a broader agreement with their law firm as a whole to provide him with general legal services, including the drafting of his will. If such an agreement were shown to exist, then appellants could probably establish that the law firm had breached its duty of care by failing to provide a will that conformed to Schalock's intentions. Under this theory as well, I believe that appellants have stated a cause of action sufficient to withstand dismissal pursuant to CR 12(b)(6).

I do not share the majority's concerns that permitting a cause of action here would lead to unlimited liability for attorneys and their law firms or impose an unreasonable burden on law practice. Nor would allowing a cause of action impose a duty on attorneys to monitor all future transactions or research all past transactions handled for a client by other members of the law firm. The attorney's duty would remain the same: to use '"that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction.'" Walker, at 859 (quoting Cook, at 395). Whether that standard of care was violated in any instance would remain a question for the trier of fact. See Cook, at 396. Naturally, in some circumstances it would be unreasonable to hold that an attorney has a duty to inquire beyond those matters directly presented by the client. Yet this is not always the case. A client may ask a lawyer for assistance in drafting a real estate contract not only to use the lawyer's expertise in drafting, but also to benefit from the lawyer's expertise in recognizing potential ramifications of the contract on his or her other legal affairs. Because agreements to perform legal services are multifaceted and varied, the scope of the lawyer's duty cannot he stated in the abstract. Rather, it is a reasonableness question that must depend in part upon the actual circumstances under which the lawyer has undertaken to perform services for the client. See Heyer, at 229. In my opinion, permitting the trier of fact to determine, in accordance with established law, whether an attorney's performance is negligent will not result in the expansion of legal malpractice liability to unwarranted extremes.

Not only are the majority's concerns ill founded, but also its remedy is ill suited to modern times. As solo practice increasingly gives way to large multipurpose law firms, clients are facing less and less control over who their attorneys will be. An individual who seeks services of a law firm today may not have much choice as to which attorneys in the firm will ultimately handle his or her particular affairs; such individual must understandably rely on the firm attorneys collectively to look after his or her interests. In such situations, the client would reasonably expect that the firm attorneys would consider the effect of their individual transactions on the client's general interests. At the very least, the client would expect that the firm attorneys would communicate with one another so that reasonable service is provided.

In its well intended desire to shield the legal profession from undue expansions in malpractice liability, the majority inappropriately nullifies an entire category of potentially valid claims. I would reverse the trial court and remand for a determination by the trier of fact as to whether each of the respondents individually and/or through their law firm violated the standard of care owed to appellants as intended beneficiaries of Schalock's will.