Judge Finds Widow Lacks Merit to Sue

Sunday, July 12th, 2009

A Manhattan judge ruled that a widow’s claim for a $9 million malpractice suit for her husband’s attorneys have no merit.  Marilyn Shafer, Supreme Court Justice, ruled that there was no privity between Jean Sorenson Leff, the widow, and Richard Cunningham and William Bush, the attorneys.

Shafer discounted the argument of Leff that occasional interactions between her and the attorneys, which includes her own will preparation, created an attorney-client relationship with regards to her husband’s estate planning.  Shafer wrote that “even if the plaintiff has a subjective belief of an attorney-client relationship, it’s not enough evidence that there is one.”

Due to this, a question was raised on who can sue for malpractice in New York when the attorneys make mistakes in estate planning.  The chair of wills and estates department for Schlesinger Gannon & Lazetera answered, “New York is one of the very few states left with privity doctrine.  Only the decedent has the privity and the right to sue - not even the executor or administrator of the estate could charge malpractice to the attorneys.  Fortunately, more and more states are moving to abandon that doctrine.”

Tags: attorney-client relationship, attorneys, Jean Sorenson Leff, malpractice, Manhattan, Marilyn Shafer, New York, privity, Richard Cunningham, Supreme Court Justice, William Bush
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Attorney-Client Relationship in Estate Planning

Sunday, July 12th, 2009

Sometimes, elderly clients would come to attorneys to draft an estate plan.  But these clients often had their caregivers or children with them.  It may be reasonable because these clients rely on their companions to express what they want and to make sure that the attorney is somebody they can trust.

However, some attorneys would want to meet the client alone to discuss major decisions.  These are the reasons why:

• -An estate planning attorney is required to confidentially and faithfully serve the client’s interest only.  Because of this, the attorney must meet the client alone to ensure that confidential information will not be known to anyone else (unless the client gives permission).
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• -When the meeting is held in confidence, the attorney would more likely get personal with the client to understand their desires and circumstances.  If anyone is in the room (say the children), other people might be the one to take charge of succeeding discussions and it might prevent the client from saying something confidential.  Therefore, a confidential meeting would definitely protect the client and enable the attorney to uncover the true wishes.
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• -Finally, the attorney should be satisfied of the mental capacity of the client.  The elderly should still have the ability to understand and communicate the instructions clearly.  Also, clients need to act out of free will without any “undue influence.”

Tags: attorney-client relationship, attorneys, confidential, elderly clients, estate plan, estate planning attorney, free will
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