Estate Planning Malpractice : Is Strict Privity Here to Stay?

Under Maryland case law, a plaintiff in an estate planning malpractice action must be in strict privity with the attorney who drafted the will. To date, Maryland has not extended the third-party beneficiary exception to the estate planning arena. Legatees specifically identified in a will by name or class are generally precluded from bringing a cause of action against the attorney for the attorney's alleged negligence, because in Maryland in order to recover for legal malpractice, a plaintiff must:show: "(1) the attorney's employment; (2) his neglect of a reasonable duty; and (3) loss to the client proximately caused by that neglect of duty." See Noble v. Bruce, 349 Md. 730,739 (citing Flanherty v. Weinberg, 303 Md. 116,128 (1985); see also Bradley Fogel, Attorney v. Client - Privity, Malpractice, and the Lack of Respect for the Primacy of the Attorney-Client Relationship in Estate Planning, 68 Tenn. L. Rev. 261,267 (2001). Maryland is in the minority of states that still adhere to the strict privity rule in the context of estate planning. Most other jurisdictions have relaxed the privity barrier in order to allow a legitimately aggrieved beneficiary to have a means of recourse against an attorney who planned the distribution of the decedent's estate in a negligent manner. Other jurisdictions following strict privity, have carved out the third-party beneficiary exception in the estate-planning context-where the attorney's negligence was "facially demonstrated" on the will itself. See Hamilton v. Needham, 519 A.2d 172 (D.C. 1988)