In Christakos v. Boyadjis, the New Jersey Supreme Court addressed a long-standing and unsettled issue in legal malpractice law: when, if ever, does an attorney owe a duty of care to a non-client? Prior to answering the question, the court observed that typically non-clients cannot establish that an attorney owed the non-client a duty of care.
The Court for the first time explicitly adopted the Restatement (Third) of the Law Governing Lawyers § 51 (2) and (3) as the controlling tests for determining whether an attorney owes a duty of care to a non-client. The Court adopted those two subsections because it had relied on those provisions of Section 51 in prior cases.
Section 51 of the Restatement (Third) of the Law Governing Lawyers provides, in relevant part, as follows:
For purposes of liability under § 48, a lawyer owes a duty to use care within the meaning of § 52 in each of the following circumstances:
(2) to a nonclient when and to the extent that:
(a) the lawyer or (with the lawyer’s acquiescence) the lawyer’s client invites the nonclient to rely on the lawyer’s opinion or provision of other legal services, and the nonclient so relies; and
(b) the nonclient is not, under applicable tort law, too remote from the lawyer to be entitled to protection;
(3) to a nonclient when and to the extent that:
(a) the lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer’s services benefit the nonclient;
(b) such a duty would not significantly impair the lawyer’s performance of obligations to the client; and
(c) the absence of such a duty would make enforcement of those
Under that standard, an attorney may owe a duty to a non-client only in two narrow circumstances:
Reliance-based duty (Section 51(2))
A duty arises when the attorney (or client, with the attorney’s knowledge) invites the non-client to rely on the attorney’s legal work, and the non-client actually and reasonably relies on it.
Intended-beneficiary duty (Section 51(3))
A duty may arise when the attorney knows that one of the primary objectives of the representation is to benefit the non-client, recognizing that such claims require clear and convincing evidence of the client’s intent.
The New Jersey Supreme Court has made clear that legal malpractice claims by non-clients must be carefully circumscribed. Absent invited reliance or clear evidence that the client intended to benefit the non-client through the attorney’s work, no duty — and therefore no malpractice claim — will lie.
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