[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

lawyer, reasoning that the interests of estate beneficiaries might conflict with those of the
executor. 44 Similarly, children cannot pursue malpractice actions against their parent’s
lawyers for negligence in obtaining a divorce. 45
Negligent Misrepresentation Greycas further illustrates how nonclient liability can be based
on either a malpractice or negligent misrepresentation theory. Liability for negligent (but
not intentional) misrepresentation occurs when a lawyer tells the truth about completing a
task such as a UCC search, but does the job negligently, such as by examining the wrong
files or database. In that case, the lawyer would not have deliberately lied about a material
fact, but his legal opinion would have been based on a failure to exercise reasonable care in
obtaining the information. 46
Today, some jurisdictions continue to require a client-lawyer relationship for
malpractice or “general” liability, but are willing to extend liability to third persons in
negligent misrepresentation cases. 47 They reason that professionals have no duty to warn
third persons, but when they undertake a duty to speak, they must do so with care. 48
Initially, a third-person duty was extended to all those who might foreseeably rely only if
the misrepresentation was made intentionally or recklessly. 49 Today, most jurisdictions
have recognized third-person liability in the case of negligent misrepresentation as well, but
not to all those who foreseeably might rely. Instead, courts have adopted the more
restrictive rule that extends liability only to “a limited group of persons for whose benefit
and guidance” the professional “intends to supply the information.” 50
Aiding and Abetting a Client’s Tort The Cruze plaintiff successfully raised several other
causes of action. The first, aiding and abetting a client’s tort (including a client’s fraud or
breach of fiduciary duty) has generated quite a number of recent cases. 51 Here, the courts
attempt to distinguish between competent legal advice and advocacy that knowingly assists
a client tort. 52
When lawyers represent fiduciaries, such as executors, trustees, guardians, partners, or
corporate officers, they know that their clients owe fiduciary duties of loyalty, disclosure,
and honesty to the beneficiaries of their work. Lawyers become liable for the client’s breach
of fiduciary duty when they know about the client’s breach and give substantial assistance
not just to the client, but to the client’s breach. 53 Substantial assistance requires something
more than providing routine professional services (such as giving legal advice). Some courts
require wrongful intent, bad faith, active participation in the fiduciary’s breach, or collusion
with one client against another. 54 However articulated, the requisite substantial assistance
can be found in lawyer self-interest, breach of a statutory duty, or knowledge of or
participation in serious misconduct such as a crime or fraud by the client (all of which
allegedly occurred in Cruze).
Conclusion
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