Illinois courts are now allowing more non-client third parties to bring claims for legal malpractice when losses are incurred. A recent state Supreme Court decision illustrates the need for third-party malpractice claims when non-clients who are beneficiaries of a lawyer’s services suffer injuries or losses. While third-party recovery for legal malpractice has been recognized in a variety of practice areas, estate planning, family law, and wrongful death are most notable.
Who is Considered a Third-Party?
In the past, the only person that could bring an action for legal malpractice against an attorney was that lawyer’s client. But recently, the Illinois courts have expanded the scope of who can sue for malpractice. For third-party legal malpractice actions, an exception for third-party beneficiaries of an attorney’s services can be made. This claim would be based on contract or negligence theory where the third-party is considered the intended beneficiary of an attorney’s services to his or her client and the non-client has suffered harm or financial loss because of the attorney’s negligence.
In allowing third-party legal malpractice actions, the Illinois Supreme Court states “the key factor to be considered in determining whether a duty is owed to a third party is whether the attorney acted at the direction of, or on behalf of, the client for the benefit of the third party.”
The practice of third-party beneficiary recovery has been most common in the practice area of estate planning. In one case, third-party beneficiaries were able to sue an attorney for legal malpractice when he failed to deed property as specified in a will. Before the beneficiaries were named in the will, the attorney owed them a duty.
The ability to sue for legal malpractice can also be used in other adversarial litigation, including family law or wrongful death actions. In 2006, the surviving children of the decedent successfully sued an attorney for making procedural mistakes in a wrongful death case. This was possible because they would have benefited from the wrongful death suit because of the requirement that such an action be brought in the name of the representatives.
What Constitutes Legal Malpractice?
Filing a malpractice lawsuit is not just applicable to medical professionals. It can also be applied to cases where an attorney:
- Did not handle the legal matter ethically and professionally
- Neglected the legal matter he or she was entrusted with
- Did not adequately prepare for the circumstances of the legal matter