Tuesday, November 22, 2005
In her note, Privity, Duty, and Loss: in Swanson v. Ptak, the Nebraska Supreme Court again Endorses Privity in Legal Malpractice Actions, 84 Neb. L. Rev. 369 (2005), Tracy M. Mason discusses the case of Swanson v. Ptak, 268 Neb. 265, 682 N.W.2d 225 (2004).
Here is the conclusion to her article:
Teresa Stanton Collett observes that although "in many jurisdictions only the 'client' has standing to sue for injuries resulting from an attorney's negligence," many "estate planners and elder law specialists regularly counsel individuals who expect the lawyer to consider the interests of others - spouses, children, parents, or other family members." Although these expectations are different from those at issue in Swanson, in which the attorney was not retained by the decedent's family for estate planning purposes, Collett's observation goes to perhaps the best justification for abrogating the privity requirement - the fact that many decedents work from the assumption that the attorney is not just working for them, but for their families. Leota Swanson may not have had a successful claim even if Nebraska's strict privity requirement was eliminated. But in order to provide Nebraskans with the opportunity to have their day in court, the Nebraska Supreme Court should, at the very least, subject the privity requirement to a methodical reconsideration. The potential of an expanded Kurtenbach approach, one which includes a more generous sweep of potential malpractice plaintiffs than merely those with pre-existing attorney-client relationships, is to provide recovery for otherwise innocent plaintiffs who have experienced a loss due to an attorney's negligence, while still maintaining limits on attorney liability to third parties.