Another Missed Opportunity in Shoemaker v. Gindlesberger: Strict Privity Lives On in Ohio Legal Malpractice Cases
Akron Law Journals
Another Missed Opportunity in Shoemaker v. Gindlesberger: Strict Privity Lives On in Ohio Legal Malpractice Cases
C. Chase Senk
Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the State and Local Government Law Commons Recommended Citation Senk, C. Chase (2010) "Another Missed Opportunity in Shoemaker v. Gindlesberger: Strict Privity Lives On in Ohio Legal Malpractice Cases," Akron Law Review: Vol. 43 : Iss. 1 , Article 8. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol43/iss1/8
ANOTHER MISSED OPPORTUNITY IN SHOEMAKER V.
GINDLESBERGER: STRICT PRIVITY LIVES ON IN OHIO
LEGAL MALPRACTICE CASES
C. Chase Senk
“We decline to change the rule of law in this state that bars an
action for negligence against a lawyer by a plaintiff who is not in privity
with the client.”1
With those words in Shoemaker v. Gindlesberger,2 the Ohio
Supreme Court upheld its antiquated strict-privity rule for
legalmalpractice actions and remained in the minority of jurisdictions that
still adhere to the rule that an attorney owes a duty of care only to her
own client.3 However, “[t]he assault upon the citadel of privity is
proceeding in these days apace.”4 Today, the majority of states have
abandoned the strict-privity rule in favor of permitting a third party to
state a claim against a negligent attorney in the estate planning context.5
Some have adopted a “balance of factors” test while the majority of
jurisdictions have focused on the intent of the testator for an intended
beneficiary to take under the will.6 However, in the minority of
jurisdictions, including Ohio, third parties not in privity with the
attorney or the client7 may not state a claim against a negligent attorney.
In these states, attorneys remain the exception—among other
professionals including doctors, accountants, appraisers, engineers, and
architects—to liability from third parties for negligence, notwithstanding
privity of contract.8
In Shoemaker, the Ohio Supreme Court reaffirmed its 1987
decision, Simon v. Zipperstein,9 which held that “an attorney may not be
held liable by third parties as a result of having performed services on
behalf of a client, in good faith, unless the third party is in privity with
the client for whom the legal services were performed, or unless the
attorney acts with malice.”10 However, in Simon, the Ohio Supreme
Court reaffirmed a strict-privity rule that was substantially different from
the strict-privity rule that courts have traditionally employed in
AngloAmerican law.11 The rule in Simon focused on privity between the
attorney’s client and the third party rather than privity between the
attorney and the third party.12
In Shoemaker, the Ohio Supreme Court missed an opportunity to
correct its misstatement of the strict-privity rule and conform to the
majority of states that have relaxed strict privity in the estate planning
context. The Court failed to relax its antiquated rule and refused to hold
attorneys accountable for their negligence. Shoemaker was an ideal case
in which to overrule Simon and the concern of the concurring judges that
Shoemaker did not contain the apposite facts to overrule Simon was
This Note surveys the development of the strict-privity rule in Ohio
and other jurisdictions and will argue that the Ohio Supreme Court
missed yet another opportunity to modify its outmoded strict-privity
rule. This Note only suggests that the Ohio Supreme Court should again
reevaluate its strict-privity rule to at least provide relief to intended
beneficiaries of negligently prepared wills. Part II provides a brief
overview of the development of the strict-privity rule in legal
malpractice cases in Anglo-American law, particularly Ohio, as well as a
few of the arguments for and against the strict-privity rule.14 Part III
provides the statement of facts, the procedural history, and the Ohio
Supreme Court’s decision in Shoemaker.15 Finally, Part IV examines the
decision in Shoemaker and argues that the Ohio Supreme Court missed a
valuable opportunity to overrule the misstated holding of Simon and
bring attorneys and other professionals under the same standard of
liability.16 It further discusses why a relaxing of strict privity is the
accepted standard among the majority of jurisdictions.17 It concludes
with why Shoemaker was the ideal case in which to overrule Simon and
discusses a federal estate tax issue in the Shoemaker opinion.18
A. Development of the Strict-Privity Rule in Legal-Malpractice Cases
One of the major developments in the law over the last half century
has been the increase in the number of malpractice claims against
attorneys in the estate planning context.19 However, according to the
American Bar Association, only 9 percent of malpractice claims from
1996 to 1999 occurred in estate planning.20 Although this figure seems
to imply that the volume of negligent estate planning cases is
insignificant, that is not the case. Throughout American jurisprudence,
legal malpractice cases have involved some of the most foundational
aspects of the law, particularly privity of contract.21
Generally, in a suit for legal malpractice, a plaintiff must prove
four elements: (
) the attorney owed a duty of care to the plaintiff, (
the attorney violated that duty of care, (
) the attorney was the proximate
cause of injury to the plaintiff, and (
) the attorney’s negligence resulted
in damages to the plaintiff.22 Whether an attorney owes a duty of care to
the plaintiff depends on whether there is privity of contract between the
attorney and the plaintiff.23
The earliest American statement that regarded privity as a
requirement for any legal-malpractice action was the United States
Supreme Court’s opinion in Savings Bank v. Ward24 in 1879.25 In Ward,
a client retained an attorney to examine and report on the title to a
particular parcel of land.26 The attorney concluded that the property was
free from encumbrances, and the client presented the title as security to a
third party for a loan of money.27 The client ultimately defaulted on the
loan, and the third party discovered that the property was in fact
encumbered.28 The third party sued the client’s attorney for negligence
despite a lack of privity between the third party and the attorney.29 The
Court held that in the absence of privity of contract, fraud, collusion, or
falsehood, the attorney did not owe the third party a duty of care.30 The
Supreme Court stated “that the obligation of the attorney is to his client
and not to a third party . . . unless there is something in the
circumstances . . . to take it out of that general rule.”31 As a result,
American common law entered the twentieth century with a general rule
each having a legally recognized interest in the same subject matter,” allowing the two parties “to
sue each other but preventing a third party from doing so.” BLACK’S LAW DICTIONARY 565-66 (3d
pocket ed. 2006).
24. 100 U.S. 195, 200 (1879).
25. Michael P. Morley, Note, Privity as a Bar to Recovery in Negligent Will-Preparation
Cases: A Rule Without a Reason, 57 U. CIN. L. REV. 1123, 1124 (1989). Prior to the American
courts adopting the privity requirement in Ward, the English courts had firmly adopted the privity
rule, although not in the context of a legal malpractice claim, by 1842 in the case of Winterbottom v.
Wright, 152 Eng. Rep. 402 (Exch. 1842). Rasmussen, supra note 23, at 566. In Winterbottom, a
mail carrier, while driving a mail coach for his employer, suffered personal injuries when the mail
coach broke down due to a latent defect in manufacturing. Winterbottom, 152 Eng. Rep. at 403.
Although the mail carrier had no direct business relationship with the manufacturer of the mail
coach, the mail carrier sought damages from the mail coach manufacturer for his injuries. Id. The
court held that the mail carrier could not maintain an action against the manufacturer because there
was no privity of contract between the two parties. Id. at 405. The court reasoned that permitting
the mail carrier to sue in this case would open the door to “absurd and outrageous” consequences of
which there would be no limit. Id.
26. Ward, 100 U.S. at 196.
29. Id. The third party argued that he detrimentally relied on the attorney’s verification of the
title in the property. Id. The third party argued that a mere lack of privity should not serve as a bar
to recovery for damages. Savings Bank v. Ward, 100 U.S. 195, 199 (1879).
30. Id. at 205-06. The Supreme Court reasoned that there is seldom any difficulty in
determining whether a client has a cause of action when the relation of attorney and client exists.
Id. at 199. However, this case presented a different issue. Id. The Supreme Court reasoned that
this case is one where a third party contends that an attorney is liable for negligence although the
third party did not employ the attorney and the attorney had no knowledge that the client was going
to use the title to secure a loan. Id.
31. Savings Bank v. Ward, 100 U.S. 195, 200 (1879).
of privity for legal malpractice claims.32 In addition, the strict-privity
rule also applied in other tort contexts, such as actions sounding in
negligence and third-party beneficiary suits.33
The general rule of strict privity for claims sounding in negligence
remained black-letter law until the landmark decision of MacPherson v.
Buick Motor Co.34 in 1916.35 In MacPherson, a car owner filed suit
against an automobile manufacturer after suffering personal injuries
resulting from a defective wheel.36 The Court of Appeals of New York
held that the owner, despite being a third party, had standing to bring
suit against the manufacturer, and the court ultimately held the
automobile manufacturer liable to the car owner.37 Subsequent cases
stayed true to the holding in MacPherson, and it became well accepted
that a lack of privity of contract was not a bar to personal injury suits
sounding in negligence.38
B. The Eroding of the Privity Requirement in Negligent Estate Planning
The first court to apply the privity rule in the context of estate
planning was the California Supreme Court in Buckley v. Gray39 in
1895.40 The California Supreme Court held that the privity rule barred
intended beneficiaries of a will from suing the attorney who negligently
drafted the will.41 Since Buckley, forty-one states have relaxed the
privity requirement for suits sounding in negligent estate planning.42
The general rule in most of these jurisdictions is that a third party may
sue an attorney in tort for negligence if the client intended for the
attorney’s services to benefit the third party and the attorney knew or
should have known that the third party would rely on the attorney’s
services.43 Several theories have emerged in many of these jurisdictions
to examine legal malpractice cases, including the balance of factors test,
the intended beneficiary theory, and the approach of the Restatement
(Third) of the Law Governing Lawyers.44
42. See Offutt, supra note 8, at 556. In particular, most jurisdictions now permit a third party
to sue an attorney for negligence in estate planning. See, e.g., Simpson v. Calivas, 650 A.2d 318,
322 (N.H. 1994) (identified third-party beneficiary of testator may sue attorney for negligence), but
see Sisson v. Jankowski, 809 A.2d 1265, 1270 (N.H. 2002) (requiring privity in the execution of the
decedent’s will); Blair v. Ing, 21 P.3d 452, 463 (Haw. 2001) (intended beneficiaries of trust may sue
attorney for negligence); Powers v. Hayes, 776 A.2d 374, 375 (Vt. 2001) (decedent’s daughter, an
intended beneficiary, may sue attorney for negligence); McLane v. Russell, 546 N.E.2d 499, 501-02
(Ill. 1989) (non-client intended beneficiary may sue attorney for negligence); Schreiner v. Scoville,
410 N.W.2d 679, 682 (Iowa 1987) (identified beneficiaries in testamentary instruments may sue
attorney for negligence); Hale v. Groce, 744 P.2d 1289, 1292 (Or. 1987) (third party who testator
had directed the attorney to include in will may sue attorney for negligence), but see Caba v. Jones,
145 P.3d 175, 177-78 (Or. 2006) (holding that plaintiffs failed to show that attorney owed a duty to
them with an implied promise to make will invulnerable to will contest); Guy v. Liederbach, 459
A.2d 744, 746 (Pa. 1983) (named legatee of a will may sue drafting attorney for negligence); Auric
v. Continental Casualty Co., 331 N.W.2d 325, 328 (Wis. 1983) (intended beneficiary may sue
attorney for negligence), but see Tensfeldt v. Haberman, 768 N.W.2d 641 (Wis. 2009) (holding that
because the decedent attorney’s drafting did not violate the testator’s intent, the omitted
beneficiaries had no negligence claim against the attorney); Woodfork v. Sanders, 248 So. 2d 419,
425 (La. Ct. App. 1971) (intended beneficiary may sue attorney for negligence because privity is
not a bar), but see Evans v. Evans, 410 So. 2d 729, 731 (La. 1982) (stating that Woodfork v.
Sanders was overruled by subsequent legislation, La. R.S. § 9:2442, repealed, Acts 1997, No. 1421,
§ 8 (1999)); Johnson v. Sandler, Balkin, Hellman & Weinstein, 958 S.W.2d 42, 49 (Mo. Ct. App.
1997) (an attorney owes a duty to a third-party intended beneficiary); Stowe v. Smith, 441 A.2d 81,
83 (Conn. 1981) (intended beneficiary may sue attorney for negligence); Francis v. Piper, 597
N.W.2d 922, 924 (Minn. Ct. App. 1999) (third-party intended beneficiary may sue attorney for
negligence, but was unable to in this case because the plaintiff was not able to show that she was a
For examples of cases from the nine states that have upheld strict privity in
legalmalpractice actions, see, e.g., Simon v. Zipperstein, 512 N.E.2d 636, 638 (Ohio 1987); Robinson v.
Benton, 842 So. 2d 631, 637 (Ala. 2002); Pettus v. McDonald, 36 S.W.3d 745, 751 (Ark. 2001);
Nevin v. Union Trust Co., 726 A.2d 694, 701 (Me. 1999); Noble v. Bruce, 709 A.2d 1264, 1278
(Md. 1998); Lilyhorn v. Dier, 335 N.W.2d 554, 555 (Neb. 1983); Viscardi v. Lerner, 510 N.Y.S.2d
183, 185 (N.Y. App. Div. 1986); Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex. 1996); Copenhaver
v. Rogers, 384 S.E.2d 593, 595 (Va. 1989). See Begleiter, supra note 3, at 282 n.34.
43. See generally Offutt, supra note 8, at 556. In many cases, a devisee may not even know
she was a devisee until the testator’s death. Id. It is sufficient here to say that a devisee’s reliance is
satisfied if the devisee would have relied on the attorney’s services had the devisee known she was a
devisee under the testator’s will. Id.
44. Id. at 557; Pinkall, supra note 40, at 1280-84.
1. The Balance of Factors Test
California became the first jurisdiction to abandon the privity
requirement for attorney negligence when its Supreme Court adopted the
balance of factors test in the 1958 case Biakanja v. Irving.45 The
Biakanja court held that the question of whether an attorney may be held
liable in professional negligence to a third party was a matter of policy
and involved the balancing of several factors, which were (
) “the extent
to which the transaction was intended to affect the plaintiff,” (
foreseeability of harm to [the plaintiff],” (
) “the degree of certainty that
the plaintiff suffered injury,” (
) “the closeness of the connection
between the defendant’s conduct and the injury suffered,” (
) “the moral
blame attached to the defendant’s conduct,” and (
) “the policy of
preventing future harm.”46
Only three years after its decision in Biakanja, the California
Supreme Court again applied the balance of factors test in Lucas v.
Hamm.47 The California Supreme Court held that third-party
beneficiaries may file a claim against attorneys who are negligent in
drafting wills that contain invalid terminology relating to restraints on
alienation and the rule against perpetuities, notwithstanding a lack of
privity.48 The California Supreme Court reasoned that the mere lack of
privity should not preclude the plaintiffs from maintaining a
legalmalpractice action against the attorney.49
45. 320 P.2d 16 (Cal. 1958); Offutt, supra note 8, at 557. In Biakanja, a notary public
prepared a will for the plaintiff’s brother that left all of his property to the plaintiff. Biakanja, 320
P.2d at 17. The court denied probate of the will for lack of sufficient attestation or signature of
witnesses. Id. As a result, the plaintiff received only one-eighth of her brother’s estate through
intestate succession. Id. The plaintiff sued the notary public in negligence. Id. at 18. The court
found that the notary public agreed and undertook to prepare a valid last will and testament for the
plaintiff’s brother, which permitted the plaintiff to sue the notary public for professional negligence.
46. Biakanja, 320 P.2d at 19.
47. 364 P.2d 685, 687 (Cal. 1961).
48. Id. at 686-90. In Lucas, an attorney prepared a will and codicils by which the plaintiffs
were to be designated beneficiaries of a trust. Id. at 686. In violation of the testator’s instructions
and in breach of his contract with the testator, the attorney negligently used invalid terminology
according to the California Civil Code. Id. Following the testator’s death, the will was admitted to
probate and as a result of the attorney’s negligence, the plaintiffs were forced to enter into a
settlement agreement under which they received a lesser share than they would have received under
the trust if validly executed. Id at 687.
49. Lucas v. Hamm, 364 P.2d 685, 687 (Cal. 1961). The California Supreme Court compared
Lucas to its holding in Biakanja:
As in Biakanja, one of the main purposes which the transaction between defendant and
the testator intended to accomplish was to provide for the transfer of property to
plaintiffs; the damage to plaintiffs in the event of invalidity of the bequest was clearly
foreseeable; it became uncertain, upon the death of the testator without change of the
2.The Intended Beneficiary Theory
Numerous jurisdictions have followed California’s lead and
applied the balance of factors test in professional negligence cases.50
However, California’s balance of factors approach has also been widely
criticized. For example, the Pennsylvania Supreme Court, in Guy v.
Liederbach, noted that “the rule of Lucas v. Hamm . . . has proved
unworkable, and has led to ad hoc determinations and inconsistent
results as the California courts have attempted to refine the broad Lucas
rule.”51 The Pennsylvania Supreme Court feared the interpretative
problems that Lucas posed and was concerned that legal malpractice
would expand to include a substantial class of injured plaintiffs.52
That fear led the Pennsylvania Supreme Court to adopt the
intended beneficiary theory.53 The intended beneficiary theory holds
that “third parties suing for negligence [must] establish that they are
intended beneficiaries of the attorney-client contract in order to extend
the attorney’s duty to the third party.”54 In Guy, the Pennsylvania
Supreme Court permitted an intended beneficiary to sue an attorney in
negligence so long as the intent of the testator for the beneficiary to take
under the will appeared on the face of the instrument.55
will, that plaintiffs would have received the intended benefits but for the asserted
negligence of defendant; and if persons such as plaintiffs are not permitted to recover for
the loss resulting from negligence of the draftsman, no one would be able to do so and
the policy of preventing future harm would be impaired.
3.The Restatement (Third) of the Law Governing Lawyers
Finally, a third approach appears in the Restatement (Third) of the
Law Governing Lawyers, which provides that a lawyer owes a duty of
care to a third party when “(a) the lawyer knows that a client intends . . .
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 obligations to the client unlikely.”56 In general, such a theory
would imply that an attorney is held to a duty of care to his client and to
fulfill the promise to act for the benefit of that client.57
C. Arguments For and Against Application of the Strict-Privity Rule in
It is important to understand the various arguments that support
strict privity in legal-malpractice actions and those that support a
relaxing of strict privity. The primary ethical considerations that
underlie the various arguments for and against strict privity are (
duty of loyalty owed to the client and (
) the concept of avoiding
conflicts of interest.58
1. Principal Arguments against Strict Privity
First, opponents of the strict-privity rule argue that the most
significant policy in favor of abandoning the outmoded strict-privity rule
is that otherwise, “the injury or property loss would fall to the victim, his
or her family members, or the taxpayers.”59 In other words, the loss to
note 40, at 1283 (quoting Leiderbach, 459 A.2d at 751). Closely related to this theory is the
Florida-Iowa rule, which states that “privity of contract will bar a beneficiary’s malpractice action
unless the beneficiary can show that the attorney’s negligence frustrated the testator’s intent as
expressed on the face of the will.” Begleiter, supra note 3, at 384 (citing Espinosa v. Sparber,
Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378, 1380 (Fla. 1993); DeMaris v. Asti, 426 So.
2d 1153, 1154 (Fla. Dist. Ct. App. 1983); Schreiner v. Scoville, 410 N.W.2d 679, 683 (Iowa 1987)).
Under the Florida-Iowa rule, a third party must show that its (
) “interest in the estate is either lost,
diminished, or unrealized,” and that (
) “the testator’s intent as expressed in the testamentary
instruments is frustrated in whole or in part” as (
) a “direct result of the lawyer’s professional
negligence.” Mason, supra note 20, at 380 (quoting Holsapple v. McGrath, 575 N.W.2d 518, 521
56. Pinkall, supra note 40, at 1283-84 (quoting RESTATEMENT (THIRD) OF THE LAW
GOVERNING LAWYERS § 51 (1998) (defining attorney liability to third parties)).
57. See Cifu, supra note 52, at 14.
58. Begleiter, supra note 3, at 343.
59. Mason, supra note 20, at 394 (“The theoretical foundations of tort law stress shifting loss
away from the innocent party, because an important function of tort actions ‘is to restore plaintiffs
the intended beneficiary would be a loss without a remedy. They argue
that an attorney is clearly the least cost avoider because the attorney can
prevent the loss by exercising adequate diligence or implementing
precautionary procedures designed to discover negligence before any
resulting harm.60 Damage to an intended beneficiary in the estate
planning context is clearly foreseeable because the intended beneficiary
is the one whom the transaction was expected to benefit.61 Protection of
third parties is a valuable goal because the Model Rules of Professional
Conduct indicate that attorneys should strive to “be competent, prompt
and diligent” advocates for their clients.62 In order to be “competent,
prompt and diligent”63 and carry out the wishes of the client, an attorney,
especially in the estate planning context, must be mindful that her
actions directly affect third parties.
Second, particularly in negligent estate-planning cases, those who
support abandoning the strict-privity rule argue that strict privity has
resulted in attorneys becoming effectively immune from liability for
malpractice.64 Negligent estate-planning cases involve situations in
which the actual client will have no incentive to bring an action because
a beneficiary generally does not discover the malpractice until after the
client has died.65 Its advocates argue that although some courts have
to the position they were in prior to the injury by awarding monetary damages.’”) (quoting THOMAS
H. KEONIG & MICHAEL L. RUSTAD, IN DEFENSE OF TORT LAW 1 (2001)).
60. Fogel, supra note 22, at 310-11. The least-cost avoider is the “individual who, through
the exercise of due care, could have prevented the damage at the lowest cost.” Id. at 310.
In contrast, it would be difficult for the client to uncover and rectify the attorney’s
negligence. In order to do so, the client would likely need to retain a second attorney to
review the work of the first. Obviously, this is wasteful and doubles the cost to the client
of estate planning services. Further, the client would be forced to reconcile the
differences between the attorneys’ advice—a difficult task for a layperson.
Id. at 311. In particular, the California Supreme Court concluded in 1961, in Lucas v. Hamm, 364
P.2d 685, 688 (Cal. 1961), “that the elimination of strict privity ‘does not place an undue burden on
the profession, particularly when we take into consideration that a contrary conclusion would cause
the innocent beneficiary to bear the loss.’” Mason, supra note 20, at 394 (quoting Lucas, 364 P.2d
at 688). “Failure to expand liability deprives deserving plaintiffs of a source of compensation for
what may well be substantial injuries. Often, the attorney will be the only one in a position to make
the plaintiff ‘whole.’ Erecting an impenetrable wall of privity denies those plaintiffs relief.” Lucia
Ann Silecchia, New York Attorney Malpractice Liability to Non-Clients: Toward a Rule of Reason
& Predictability, 15 PACE L. REV. 391, 445-46 (1995).
61. Lucas, 364 P.2d at 689.
62. Mason, supra note 20, at 394 (quoting MODEL RULES OF PROF’L CONDUCT pmbl. ¶¶ 2-4
64. See Fogel, supra note 22, at 308; Silecchia, supra note 60, at 446-47.
65. Silecchia, supra note 60, at 446-47.
There are also situations in which the actual client will have no incentive to bring an
action in law or before a disciplinary board against the attorney for his conduct. This
held that the client’s estate succeeds to the interest of the client against
the negligent attorney, this does not provide an adequate remedy:
[O]f the three possible plaintiffs, [the client, the beneficiary, and the
executor,] only the beneficiaries are, as a practical matter, able to bring
a malpractice claim. The client is deceased, and the estate lacks a
cause of action or damages or both. Indeed, because the beneficiaries
are the beneficial owners of estate assets, only the beneficiaries suffer
directly due to the attorney’s negligence. If the beneficiaries are
denied a cause of action, the negligent attorney is effectively immune
from liability. Therefore, the beneficiaries, but not the negligent
attorney, suffer the loss caused by the attorney’s negligence.66
The only remedy adequate enough to compensate for the
beneficiary’s loss would be to recognize a cause of action by that
intended beneficiary against the negligent attorney.67
Third, advocates of a liberal privity rule argue that increasing
attorney liability will result in more careful legal representation, a higher
degree of professional care, and greater diligence.68 The role of an
attorney should be more like that of an advisor and consultant rather than
a mere scrivener.69 Furthermore, expanding liability for attorneys will
occurs most often in the trust and estate fields where the malpractice is often not
discovered until the actual client has died. Therefore, the only one who will be in a
position to bring suit will be a third party. Not only does expanded liability provide an
avenue for that third party to seek redress; it also provides a financial incentive—the
possibility of recovery—for such claims and may foster more vigorous litigation by
those with an incentive to do so.
66. Fogel, supra note 22, at 310 (arguing that this remedy is inadequate because in many
cases, the attorney’s negligence may not cause any damage to the estate and executors have little
motivation to pursue attorney malpractice claims).
67. Id. at 310. If a beneficiary were to have a cause of action, it would increase the quality of
representation of estate attorneys. Id. It is unreasonable to deprive the intended beneficiary of a
remedy because the client-testator is deceased. Id. This is especially true when, in the estate
planning context, both damages and negligence will not be discovered until after the client-testator’s
death. Id. at 311.
68. See Offutt, supra note 8, at 568; Cifu, supra note 52, at 23; Silecchia, supra note 60, at
Just as the spectre of a malpractice action may be an added incentive for attorneys to
exercise a high degree of professional care, so too may the possibility of added liability
be an impetus for ever greater diligence. If one of the goals of a liability scheme is, in
fact, to be deterrence of the conduct in question, then “raising the stakes” on committing
the offense rather than eliminating liability seems the wiser course.
69. Fogel, supra note 22, at 312 (“The estate planning attorney must assist the client in
balancing the complexities of federal and state taxes (including the estate, gift, generation skipping
transfer, and income taxes) with the testator’s personal family situation.”). A client’s reliance on an
estate planning attorney is arguably higher than for other forms of representation because it deals
bring all professionals under the same standard, eliminating the special
privileges that attorneys enjoy above other professionals like physicians
and accountants.70 In the minority of states, lawyers remain immune
from liability to third parties, unlike other professionals such as
physicians and accountants, who may be held liable for negligence by
2. Principal Arguments for Strict Privity
First, proponents of strict privity argue that greater attorney
liability could adversely affect the overall approach of how a lawyer
counsels her client.72 They argue that relaxing strict privity would create
conflicts of interest among clients and third parties, ultimately exposing
attorneys to broad potential liability.73 They argue that the strict-privity
with matters of a more personal nature, such as to whom the client’s estate will be distributed upon
70. Silecchia, supra note 60, at 447-48 (“Although ‘there are distinctive aspects of
lawyerclient relationships for courts to consider,’ these may not justify completely different treatment for
members of the legal profession vis-à-vis their colleagues in other professions.”).
71. See id. at 447 n.324.
72. Cifu, supra note 52, at 15. The leading case adopting ethical arguments in favor of strict
privity was Noble v. Bruce, 709 A.2d 1264 (Md. 1998). Begleiter, supra note 3, at 346. The court
discussed the policy reasons for strict privity:
First, the strict-privity rule protects the integrity and solemnity of the will. The
beneficiaries are in effect requesting this Court to reform the wills so that the attorney
will be responsible for the payment of taxes. If such liability were allowed, the attorney
would be paying out-of-pocket for an additional bequest to the beneficiaries not
expressed in the will. Although not a persuasive argument, we do note that the
attorney’s liability is also disproportionate to the cost of the will. The loss to the client is
very different from the loss to the beneficiary that may occur as a result of an attorney’s
negligence in will drafting or estate planning; the client’s loss is the cost of redrafting the
will, whereas the beneficiary’s loss [in this action] is the amount of taxes that could have
In addition, the strict-privity rule protects the attorney-client relationship. Adopting
a new rule that would subject an attorney to liability to disappointed beneficiaries
interferes with the attorney’s ability to fulfill his or her duty of loyalty to the client and
compromises the attorney’s ability to represent the client zealously . . . . [A] potential
conflict of interest may exist between the client’s interests and the interests of the
beneficiaries . . . .
The strict-privity rule also protects attorney-client confidentiality . . . . An attorney .
. . should not be placed in the position where he or she would have to reveal a
testator/client’s confidences in an attorney malpractice action asserted by a nonclient
beneficiary . . . . Allowing a nonclient beneficiary to maintain a cause of action against
an attorney for professional malpractice may require the attorney to reveal confidences
the testator would never want revealed.
Id. at 346-49 (quoting Noble, 709 A.2d at 1277-78).
73. See Begleiter, supra note 3, at 342; Silecchia, supra note 60, at 441. This argument is the
traditional one in favor of strict privity. Id
rule is efficient in that it limits would-be plaintiffs and removes the fear
of potential liability.74
Second, adherents to the strict-privity requirement argue that
because an attorney’s primary purpose is to zealously represent his or
her client’s interests, if courts relax strict-privity rules then conflicts
between a duty to a client and duties to third parties will result.75 They
argue that attorneys cannot maintain the same standard of care to a third
party as the attorney maintains to a client.76 As a result, expanding
liability may cause attorneys to adopt overprotective practices and
conservative approaches in dealing with their clients out of a fear of
Third, expanding an attorney’s liability to third parties may result
in a large financial burden for the legal profession.78 Attorneys would be
forced to turn to malpractice insurers to cover the increased risk of loss,
which would cause the already-difficult-to-obtain insurance premiums to
skyrocket.79 As a result, the attorney’s clients ultimately will bear any
increases in malpractice insurance.80
75. See Cifu, supra note 52, at 17; Fogel, supra note 22, at 312; Silecchia, supra note 60, at
76. Cifu, supra note 52, at 18-19 (explaining that attorneys may not be aware of the identities
of all of the parties to a complex transaction and that an attorney may counsel clients not to proceed
with certain transactions out of fear of liability).
77. Silecchia, supra note 60, at 442.
Rather than being the “zealous advocates” for their clients that the Code of Professional
Responsibility requires, it is argued attorneys will become cautious of certain client
requests or transactions that could potentially expose them to malpractice liability. It is
also argued that once the privity rule is relaxed, the number of persons a lawyer can be
accountable to could be limitless. Furthermore, it is believed that the threat of
malpractice liability will damage the confidentiality central to the attorney-client
relationship because the attorney will be concerned with his or her own liability rather
than his or her client’s interests.
Offutt, supra note 8, at 567.
Third parties may be better served by having their own lawyer who is concerned only with the
client’s interests and not malpractice liability handle the transaction. Cifu, supra note 52, at 24.
However, this approach may increase transaction costs due to increased attorneys’ fees. Id.
78. See Silecchia, supra note 60, at 442; Mason, supra note 20, at 394; Cifu, supra note 52, at
23; Offutt, supra note 8, at 568.
79. See Cifu, supra note 52, at 23 (“Legal malpractice insurance has been increasingly
difficult to obtain and, as with other types of professional insurance, premiums have skyrocketed
over the last five years. Increased insurance premiums will likely be borne by clients eventually in
the form of higher fees.”).
80. Mason, supra note 20, at 394; Cifu, supra note 52, at 23; Silecchia, supra note 60, at
44243 (“For example, if A intends to leave an estate worth $200,000 to B and her attorney drafts the
will negligently, the $200,000 may go to C, the beneficiary of an earlier valid will. If B is allowed
to recover $200,000 from A’s negligent attorney, then $400,000 has been distributed as a result of
A’s death rather than the true value of her estate.”).
Fourth, advocates of the strict-privity rule note that there is a
fundamental difference between lawyers and other professions: “[T]he
attorney-client relationship demands secrecy.”81 Advocates argue that
unlike an accountant, “a lawyer being sued by a nonclient third party
faces a dilemma as to revealing privileged information obtained in the
course of the attorney-client relationship, but necessary to properly
defend against the malpractice suit.”82
D. Development of the Privity Requirement in Negligent Estate
Planning in Ohio
The first Ohio court to address the issue of whether a third party,
not in privity with an attorney, has standing to sue the attorney in
negligence was in 1976, when the Tenth District Court of Appeals issued
its decision in W.D.G., Inc. v. Mutual Manufacturing & Supply Co.83 In
W.D.G., the court followed Ohio’s general rule that only clients in
privity with an attorney or third parties in privity with the attorney’s
client had standing to sue in malpractice actions against the attorney.84
The court reasoned that “[t]o allow indiscriminate third-party actions
against attorneys of necessity would create a conflict of interest at all
times, so that the attorney might well be reluctant to afford proper
representation to his client in fear of some third-party action against the
81. Cifu, supra note 52, at 22.
82. Id. Cifu explains the dilemma that an attorney faces in such situations:
Disciplinary Rule 4-101(C)(
) of the Model Code of Professional Responsibility
provides that an attorney may reveal a client’s confidences “to defend himself or his
employees or associates against an accusation of wrongful conduct.” However, this
exception contemplates the situation where the client had sued the attorney for
negligence or malpractice and “it became necessary for the attorney to show what his
instructions were, or what was the nature of the duty which the client expected him to
perform.” Allowing a lawyer to reveal a client’s confidences during the course of a
malpractice suit brought by the client makes sense because the client, having initiated the
action, is aware that the lawyer may reveal confidences. When a third party brings suit,
however, the client has not given such an implicit waiver of the privilege and may suffer
as the information is revealed.
83. No. 76AP-366, 1976 WL 190343, at *3 (Ohio Ct. App. Nov. 4, 1976).
84. Id. (citing 45 A.L.R. 3D 1181) (A.L.R. authority has been superseded).
85. Id. The court continued, reasoning “[a]n attorney does have an obligation to the public
and to his profession to act honestly, competently, in good faith, and without malice in all of the
activities he undertakes.” Id. at *3.
1. Scholler v. Scholler
In 1984, the Ohio Supreme Court addressed the issue of third-party
claims against an attorney in Scholler v. Scholler.86 In Scholler, a
mother sued her former husband and his attorney on behalf of her and
her minor child, an intended beneficiary of child support.87 The mother
alleged that her former husband fraudulently withheld information
concerning his assets during the negotiation of the separation
agreement.88 Further, the mother alleged that the attorney negligently
failed to investigate the financial circumstances of the parties and
negligently failed to require a full disclosure of her former husband.89
The trial court granted the attorney’s motion for summary judgment and
the Court of Appeals affirmed.90 On appeal, the Ohio Supreme Court
also affirmed.91 The Ohio Supreme Court reasoned that an attorney
representing a parent in a divorce proceeding does not automatically and
simultaneously also represent the interests of a minor child of the
86. 462 N.E.2d 158, 162 (Ohio 1984). The Ohio Supreme Court also considered the issue in a
prior case, Petrey v. Simon, 447 N.E.2d 1285 (Ohio Ct. App. 1983), which Scholler affirmed. Id. at
87. Id. at 160. Alyce and Michael Scholler had one child, Philip Scholler. Id. Alyce and
Michael filed for dissolution of marriage, which resulted in a separation agreement that required
Michael to pay Alyce $55 per week in child support. Id.
88. Scholler v. Scholler, 462 N.E.2d 158, 160 (Ohio 1984). Subsequent to the separation
agreement, Alyce filed a motion for modification of child support, alleging that Michael
fraudulently withheld information concerning Michael’s assets during the negotiation of the
separation agreement between Alyce and Michael. Id. The court denied Alyce’s motion. Id. Alyce
sought a subsequent modification and the court increased the child support to fifty-five dollars per
89. Id. Alyce filed a complaint individually and on behalf of Philip alleging fraud and
misrepresentation on the part of Michael and alleging that Michael’s attorney “negligently failed to
make a complete investigation of the financial circumstances of the parties . . . [and] negligently
failed to require a full disclosure of . . . Michael Scholler, during the course of negotiation of the
aforesaid separation agreement.” Scholler v. Scholler, 462 N.E.2d 158, 160 (Ohio 1984).
90. Id. at 161. The trial court reasoned that the doctrine of collateral estoppel was not
available to the attorney, but that no genuine issue of fact existed as to the attorney’s negligence. Id.
Further, the trial court observed that the statute of limitations barred Alyce’s claims. Id. On appeal,
the court affirmed but reasoned that there existed a genuine issue of fact as to the attorney’s
negligence. Id. The court reasoned that the statute of limitations barred Alyce’s claim and the
attorney owed no duty to Philip because Philip was not in privity with Alyce during the negotiation
of the separation agreement. Scholler v. Scholler, 462 N.E.2d 158, 160 (Ohio 1984).
91. Id. at 164. The Ohio Supreme Court reaffirmed the general rule in Ohio that “[a]n
attorney is immune from liability to third persons arising from his performance as an attorney in
good faith on behalf of, and with the knowledge of his client, unless such third person is in privity
with the client or the attorney acts maliciously.” Id. at 163.
marriage.92 As a result, the Ohio Supreme Court reaffirmed the
strictprivity rule in attorney negligence actions.93
2. Simon v. Zipperstein
In 1987, the Ohio Supreme Court faced the issue of privity again in
Simon v. Zipperstein.94 However, this time, the Ohio Supreme Court
faced this issue in the context of negligent estate planning.95 In
Zipperstein, attorney Zipperstein prepared an antenuptial agreement for
Dr. Simon and his fiancée Mildred whereby half of Dr. Simon’s real and
personal property interests would pass to Mildred.96 Three years later,
Zipperstein prepared a last will and testament for Dr. Simon which
bequeathed one-third shares of his estate to Mildred, certain designated
charities, and Zachary, Dr. Simon’s son from a former marriage.97 The
last will and testament made no reference to the antenuptial agreement.98
Upon Dr. Simon’s death, Mildred instituted a declaratory judgment
action to determine her rights to receive property through both the
antenuptial agreement and the last will and testament.99 The probate
court held that the antenuptial agreement was without force but the
Court of Appeals reversed.100 The Court of Appeals held that the
antenuptial agreement created a valid debt against the estate, and
because the last will and testament did not refer to the antenuptial
agreement, Mildred was entitled to take under both instruments.101
Doris, Zachary’s mother and legal guardian, filed a suit for
malpractice against Zipperstein, alleging negligence.102 The trial court
barred the complaint pursuant to collateral estoppel.103 On appeal, the
court reversed the trial court holding and remanded the case back to the
trial court.104 On remand, the trial court held that, absent privity, Doris
was unable to sue for legal malpractice.105 Again, the Court of Appeals
reversed, holding this time that the privity requirement was discredited
and that Doris alleged sufficient facts to state a cause of action against
Zipperstein as a third-party beneficiary.106
However, the Ohio Supreme Court reversed the decision of the
Court of Appeals, upholding Ohio’s long history of the privity
requirement and reiterating the Court’s holding in Scholler.107 The Ohio
Supreme Court reasoned that an attorney’s obligation is to the needs of
the client, not to the needs of a third party.108 The Ohio Supreme Court
102. Id. The suit sought damages resulting from Zipperstein’s purported failure to renounce
the antenuptial agreement. Id.
103. Simon v. Zipperstein, 512 N.E.2d 636, 637 (Ohio 1987). The trial court reasoned that the
probate court previously litigated the issue of Dr. Simon’s intent in the declaratory judgment action
to which Zachary was a party. Id.
106. Simon v. Zipperstein, No. 9655, 1986 WL 8531, at *14 (Ohio Ct. App. July 29, 1986).
The Court of Appeals reasoned,
The one-hundred-forty-year old justification for the privity of contract limitation, that
unlimited liability could be prevented in no other way, has now been discredited in many
instances. Justice demands that with regard to the privity requirement, as with any other
rule, “when the reason for the rule ceases, the rule also ceases.”
further reasoned that no special circumstances such as collusion, malice,
or bad faith existed in the instant case.109
In his dissent, Justice Brown argued that the majority opinion in
Zipperstein virtually guaranteed to attorneys immunity from liability for
malpractice.110 Justice Brown contended that “in drafting a will, the
attorney knows that (
) the client has employed him or her for the
specific purpose of benefiting third persons, and (
) the consequences of
an error . . . will most likely fall upon those intended beneficiaries.”111
E. Ohio’s Relaxed Privity Rule Regarding Other Professionals
Despite Ohio’s continued adherence to strict privity in attorney
malpractice actions, Ohio has relaxed the strict-privity requirement for
other professions, including physicians and accountants.112 In addition,
Ohio has extended privity to those with whom an attorney’s client owes
a fiduciary obligation,113 as well as limited partners within a partnership
109. Simon, 512 N.E.2d at 638.
110. Id. at 639 (Brown, J., dissenting). Justice Brown used the example that if an attorney
negligently fails to direct proper attestation of a will, the majority’s rule would mean that no action
can be brought against the attorney. Id. Justice Brown argued that “[t]his is so because the client,
the testator, must die before the will becomes operative.” Id. Justice Brown also argued that the
privity requirement in legal malpractice should be buried in order to bring attorney malpractice into
line within the body of tort law. Id.
111. Simon v. Zipperstein, 512 N.E.2d 636, 639 (Ohio 1987) (Brown, J., dissenting). Justice
Brown argued that if an attorney fails to carry out the testator’s intent, resulting in an intended
beneficiary receiving less than the client intended, surely the client, if he or she were still alive,
would want the intended beneficiary to have the ability and the standing to bring an action against
the negligent attorney. Id.
112. See Shaweker v. Spinell, 181 N.E. 896, 896 (Ohio 1932) (a husband may sue a physician
to recover for the loss of his wife’s services); Kocisko v. Charles Shutrump & Sons Co., 488 N.E.2d
171, 173 (Ohio 1986) (third-party may sue architects for negligence in design and construction of a
church building). This case was a reversal of summary judgment, finding that the trial court had
erred in applying the ten-year tort statute of limitations; because the archbishop was a party to the
contract, and this was a breach of contract suit, the fifteen-year statute of limitations applied, so the
case was not time-barred. See also Temple v. Wean United, Inc., 364 N.E.2d 267, 270 (Ohio 1977)
(third-party plaintiffs permitted to sue manufacturers of a punch press); Haddon View Inv. Co. v.
Coopers & Lybrand, 436 N.E.2d 212, 215-16 (Ohio 1982) (third party may sue accountant for
professional negligence when the third party is a member of a limited class whose reliance is
specifically foreseen); Perpetual Fed. Savings & Loan Ass’n v. Porter & Peck, Inc., 609 N.E.2d
1324, 1328 (Ohio App. Ct. 1992) (third party may sue an appraiser for professional negligence);
Merrill v. William E. Ward Ins., 622 N.E.2d 743, 748-49 (Ohio App. Ct. 1993) (an insurance agent
could be held liable for negligence to children of insured who claimed that they were intended
113. Elam v. Hyatt Legal Services, 541 N.E.2d 616, 618 (Ohio 1989) “It is the duty of a
fiduciary of an estate to serve as representative of the entire estate. Such a fiduciary, in the
administration of an estate, owes a duty to beneficiaries to act in a manner which protects the
beneficiaries’ interests.” Id. The court in Elam noted that its decision did not contradict the holding
in Simon v. Zipperstein, because Elam involved a case where remaindermen’s interests were vested.
Supreme Court received another chance in 2008 when the Supreme
Court reviewed Shoemaker.117
III. STATEMENT OF THE CASE
A. Statement of the Facts
In 1986, attorney Thomas Gindlesberger (Gindlesberger) prepared
the last will and testament of Margaret Schlegel (Margaret).118 In 1990,
Gindlesberger prepared a general warranty deed for Margaret that
retained a life estate for Margaret in the family dairy farm (Hanna Farm)
and transferred a joint life estate in the Hanna Farm to Margaret’s son
Roy Schlegel (Roy) and his wife with joint right of survivorship.119
Margaret died on June 30, 2003.120
The court admitted Margaret’s will to probate in July 2003 and her
children discovered that the estate was responsible for state and federal
estate tax liabilities owed on the transfer of the Hanna Farm to Roy.121
The taxes depleted Margaret’s entire estate and left Margaret’s two other
children, Robert Schlegel (Robert) and Anna Mae Shoemaker (Anna)
with nothing.122 Robert, as a beneficiary and executor of Margaret’s
with the public policy that favors some immunity for attorneys, as against third-party lawsuits);
Simon v. Zipperstein, 512 N.E.2d 636, 639-40 (Ohio 1987) (Brown, J., dissenting).
117. 887 N.E.2d 1167 (Ohio 2008).
118. Id. at 1168. Gindlesberger also drafted two codicils for Margaret. Id. The two codicils
were executed between 1994 and 1997. See Merit Brief of Appellants Robert E. Schlegel, Executor,
et al., at 3, Shoemaker v. Gindlesberger, 887 N.E.2d 1167 (Ohio 2008) (No. 07-113).
Gindlesberger’s office notes also reveal that on May 31, 1996, he consulted with and reviewed
Margaret’s estate plan with her, Anna, and Robert. Id.
119. Id. Margaret owned two tracts of land including the Hanna Farm and her home, which
Margaret referred to as the “home place.” Id. Roy operated a dairy business on the Hanna Farm.
Schlegel v. Gindlesberger, No. 04-CV-076, 2005 WL 6113389, at 3 (Ohio Ct. Com. Pl. Dec. 1,
2005). Roy wished to make improvements on the Hanna Farm in order to increase milk production
and wanted to secure a mortgage loan to finance the project. Id. Margaret refused to sign a
mortgage on the Hanna Farm, and Roy sought financing elsewhere. Id. Prior to any expansion,
Roy wanted to ensure that he would receive the Hanna Farm upon Margaret’s death. Id. Margaret
conveyed a general warranty deed with joint right of survivorship in the Hanna Farm to Roy, while
also retaining a life estate for herself. Id. A general warranty deed warrants against any and all
defects in title, whether they arose before or after the grantor took title. JESSE DUKEMINIER ET AL.,
PROPERTY 514 (6th ed. 2006). Joint right of survivorship is that “joint tenants together are regarded
as a single owner” so “when one joint tenant dies nothing passes to the surviving joint tenant or
tenants.” Id. at 276.
120. Schlegel v. Gindlesberger, No. 05 CA 10, 2006 WL 3783537, ¶ 3 (Ohio Ct. App. Dec. 26,
121. Shoemaker, 887 N.E.2d at 1169.
122. Schlegel, No. 05 CA 10, 2006 WL 3783537, ¶ 3. Roy still would have received his
portion of Margaret’s estate, which was the Hanna Farm, but the state and federal estate taxes owed
estate, and Anna, as a beneficiary, claimed that Gindlesberger was
negligent because he failed to advise Margaret of the tax implications of
an inter vivos transfer to Roy of most of her interest in the Hanna
B. The Court of Common Pleas of Ohio, Holmes County
On June 29, 2004, Robert and Anna filed a complaint in the Court
of Common Pleas of Ohio, Holmes County (Common Pleas Court)
alleging legal malpractice against Gindlesberger which resulted in unjust
enrichment for Roy.124 Robert and Anna argued that Gindlesberger
failed to advise Margaret of the tax liabilities of the transfer of the
Hanna Farm, constituting legal malpractice.125 Robert and Anna
contended that depleting Margaret’s estate precluded Margaret’s
intention of dividing her estate equally among her three children.126
Roy filed a cross-claim against Gindlesberger that also alleged
negligence.127 Roy claimed that Gindlesberger’s lack of tax law
knowledge was the reason for the depletion of the assets of Margaret’s
estate.128 Robert, Anna, and Roy argued that special circumstances
existed that would justify a departure from the rule of attorney immunity
to third-party claims.129
Gindlesberger responded that because there was no privity between
Margaret’s children and himself, Margaret’s children lacked standing130
to bring suit.131 All parties moved for summary judgment.132 On
December 1, 2005, Common Pleas Court issued a judgment entry
denying Roy’s and Anna’s motion for summary judgment on the unjust
enrichment claim and granting Gindlesberger’s motion for summary
judgment, thereby dismissing the legal malpractice claims.133 The court
held that there was “no evidence that an attorney-client relationship or
sufficient privity with an attorney-client relationship existed between
[Gindlesberger and Margaret’s children].”134
C. The Court of Appeals of Ohio, Fifth District
On December 22, 2005, Roy filed a notice of appeal in the Court of
Appeals of Ohio, Fifth District (Fifth District) alleging that the trial court
erred in overruling Roy’s motion for summary judgment on the unjust
enrichment claim and erred in dismissing the malpractice claim against
Gindlesberger.135 Roy argued that the Fifth District should abandon the
general rule of attorney immunity to third-party claims regarding a will
because attorneys are aware that their actions affect not only the client
but also the testator’s intended beneficiaries.136
decedent’s attorney unless there was a finding of malicious behavior.” Id. at 7 (citing Simon, 512
N.E.2d at 638).
130. Standing is one’s “right to make a legal claim or seek judicial enforcement of a duty or
right.” BLACK’S LAW DICTIONARY 671 (3d pocket ed. 2006).
131. Shoemaker v. Gindlesberger, 887 N.E.2d 1169 (Ohio 2008). Privity is defined as “the
connection or relationship between two parties, each having a legally recognized interest in the
same subject matter.” Id. at 1170 (quoting BLACK’S LAW DICTIONARY 1237 (8th ed. 2004)).
Gindlesberger testified that he advised Margaret to consult her accountant regarding the potential
tax liability for the transfer of the Hanna Farm. Schlegel v. Gindlesberger, No. 04-CV-076, 2005
WL 6113389, at 6 (Ohio Ct. Com. Pl. Dec. 1, 2005). Gindlesberger argued that an attorney-client
relationship would be necessary in order for Margaret’s children to bring suit. Shoemaker, 887
N.E.2d at 1169. Gindlesberger contended that Margaret was the only individual in privity with
Gindlesberger in the instant case, and therefore the only individual with standing to sue. Id. As a
result, Gindlesberger argued that the court should dismiss the case. Id.
132. Schlegel v. Gindlesberger, No. 04-CV-076, 2005 WL 6113389, at 1 (Ohio Ct. Com. Pl.
Dec. 1, 2005).
133. Id. at 7. The court stated the necessary elements of a legal malpractice claim: “(
attorney-client relationship; (
) a professional duty arising from that relationship; (
) breach of that
) proximate cause; and (
) damages.” Id. at 5-6 (citing Vahila v. Hall, 674 N.E.2d 1164
(Ohio 1996); Krahn v. Kinney, 538 N.E.2d 158 (Ohio 1989)).
134. Schlegel, No. 04-CV-076, 2005 WL 6113389, at 6. The trial court reasoned that Margaret
paid Gindlesberger for his services, and Margaret’s children admitted they were not clients of
135. Schlegel v. Gindlesberger, No. 05 CA 10, 2006 WL 3783537, ¶¶ 6-8 (Ohio Ct. App. Dec.
26, 2006). On Dec. 29, 2005, Robert and Anna also filed a notice of appeal. Id. ¶ 6.
136. Id. ¶ 31.
The Fifth District held that Roy’s appeal of the trial court’s denial
of summary judgment on the unjust enrichment claim was not a final
appealable order and not subject to immediate appeal.137 The Fifth
District also held that Roy’s assignment of error regarding the
malpractice claim was without merit.138 The Fifth District reasoned that
precedent bound the court and Margaret was the only individual with
standing to sue.139 However, the Fifth District invited the Ohio Supreme
Court to revisit the issue because “there should be a remedy to any
D. The Ohio Supreme Court
The Ohio Supreme Court accepted the case as a discretionary
appeal.141 However, Anna, as beneficiary and executor of Margaret’s
estate, and Nola Schlegel (Nola), executor of Robert’s estate, brought
this appeal because Robert had died in the years since the trial court
Anna and Nola argued that the Ohio Supreme Court should adopt a
new rule that would allow third-party intended beneficiaries to sue an
attorney who is negligent in preparing a will.143 Anna and Nola argued
that Ohio’s strict-privity requirement in legal malpractice cases was an
“antiquated rule,” noting that several jurisdictions permitted
beneficiaries to bring such actions.144 As a matter of policy, Anna and
Nola argued that intended beneficiaries of a will needed to hold
negligent attorneys accountable because negligence normally is
discovered only after the death of the testator, resulting in harm to the
Gindlesberger argued that the Ohio Supreme Court should not
expand the strict rule of privity in Ohio.146 As a matter of policy,
Gindlesberger argued that the strict-privity rule provided for certainty in
estate planning.147 Gindlesberger contended that he did exactly what
Margaret wished and that it was conceivable “that a testator may not
wish to optimize tax liability, instead seeking to further a different
The Ohio Supreme Court affirmed the lower court decisions and
held that “a beneficiary of a decedent’s will may not maintain a
negligence action against an attorney for the preparation of a deed that
results in increased tax liability for the estate.”149 The Ohio Supreme
will. Brief for Ohio Association for Justice as Amicus Curiae Supporting Appellants, at *6 n.10;
Shoemaker v. Gindlesberger, 887 N.E.2d 1167 (Ohio 2008) (No. 07-113). The Ohio Association
for Justice further argued that “[w]hen an attorney undertakes to fulfil[l] the testamentary
instructions of his client, he realistically and in fact assumes a relationship not only with the client
but also with the client’s intended beneficiaries.” Id. at *8.
145. Shoemaker, 887 N.E.2d at 1170-71. The Merit Brief in support of Anna and Nola argued
that an attorney in drafting a will must be aware that a will’s purpose is for the “benefit of
thirdparties” and that an error in drafting or execution “befalls the intended beneficiaries” and does not
“result in harm upon the immediate client, who will likely be deceased at the time that the error is
discovered . . . . “ Merit Brief of Appellants Robert E. Schlegel, Executor, et al., supra note 118, at
10. In order to make an attorney accountable for his negligence, it is reasonable to grant third-party
beneficiaries standing to file suit. Id. After all, the negligence damages both the decedent and the
intended beneficiaries. Reply Brief of Appellants Robert E. Schlegel, Executor, et al., at *5,
Shoemaker, 887 N.E.2d 1167 (No. 2007-0113).
146. Shoemaker, 887 N.E.2d at 1169. The Merit Brief of Gindlesberger argued that, according
to the Ohio Supreme Court in Westfield Insurance Company v. Galatis, 797 N.E.2d 1256 (Ohio
2003), the Ohio Supreme Court “may overrule its previous decisions only where (
) the decision
was wrongly decided at that time, or changes in the circumstances no longer justify the continued
adherence to that decision, (
) the decision defies practical workability and (
) abandoning the
precedent would not create an undue hardship for those that relied upon it.” Merit Brief of Appellee
Thomas D. Gindlesberger, Esq. at 12; Shoemaker, 887 N.E.2d 1167 (No. 07-113) (quoting Westfield
Ins. Co., 797 N.E.2d at 1259 syllabus). The brief argued that neither of the three conditions was
present in the instant case. Id. at 12-13.
147. Shoemaker v. Gindlesberger, 887 N.E.2d 1167, 1172 (Ohio 2008). The Merit Brief of
Gindlesberger argued that the strict-privity rule protects the solemnity and integrity of the will, and
the attorney/client relationship. Merit Brief of Appellee Thomas D. Gindlesberger, Esq., supra note
146, at 10.
148. Shoemaker, 887 N.E.2d at 1172. The Merit Brief of Gindlesberger argued that “[t]he
principles of loyalty and independent judgment are fundamental to the attorney/client relationship
and . . . [n]either the lawyer’s personal interests, the interests of other clients, nor the desires of third
persons should be permitted to dilute the lawyer[‘]s loyalty to the client.” Merit Brief of Appellee
Thomas D. Gindlesberger, Esq., supra note 146, at 8.
149. Shoemaker, 887 N.E.2d at 1168.
Court reasoned that the strict-privity rule was rooted in the special
relationship between attorney and client, and that an attorney had an
obligation to fulfill only the needs of his clients.150 Further, the Ohio
Supreme Court reasoned that no special circumstances were present in
the instant case that would justify a departure from the strict-privity
rule.151 As a matter of policy, the Ohio Supreme Court reasoned that the
privity rule protected the attorney’s duties of loyalty and advocacy for
the client, provided certainty, and protected confidentiality.152
However, the Ohio Supreme Court noted that other courts have
permitted a personal representative of an estate to stand in the shoes of
the decedent in an action for legal malpractice in order to meet the
strict150. Id. at 1170. The Ohio Supreme Court reasoned that Margaret’s children were not in
privity with Margaret or Gindlesberger and that their rights as intended beneficiaries did not vest
until Margaret’s death. Id. The majority summarized its public policy justifications for the
Primarily, the rule is used to protect the attorney’s duty of loyalty and the attorney’s
effective advocacy for the client. The strict-privity rule ensures that attorneys may
represent their clients without the threat of suit from third parties who may compromise
that representation. Otherwise, an attorney’s preoccupation or concern with potential
negligence claims by third parties might diminish the quality of legal services provided
to the client if the attorney were to weigh the client’s interests against the possibility of
Second, without the strict-privity rule, the attorney could have conflicting duties and
divided loyalties during the estate planning process. Third, there would be unlimited
potential liability for the lawyer . . . .
The comment to Ohio’s conflict-of-interest rule, Prof.Cond.R. 1.7, states: “The
principles of loyalty and independent judgment are fundamental to the attorney-client
relationship and underlie the conflict-of-interest provisions of these rules. Neither the
lawyer’s personal interest, the interests of other clients, nor the desires of third persons
should be permitted to dilute the lawyer’s loyalty to the client.” The rules of
professional responsibility, therefore, also underscore the need to ensure that a lawyer is
not liable to parties who are not in privity with the lawyer’s client.
Id. at 1171 (citations omitted).
151. Id.at 1170.
152. Shoemaker v. Gindlesberger, 887 N.E.2d 1167, 1171-72 (Ohio 2008). The Ohio Supreme
Court stated that the strict-privity rule “ensures that attorneys may represent their clients without the
threat of suit from third parties who may compromise that representation.” Id. at 1171 (citing
Barcelo v. Elliot, 923 S.W.2d 575, 578-79 (Tex. 1996)). Otherwise, fear of third-party negligence
claims might thwart the attorney’s duty of zealous representation for the client. Id. “[T]he only safe
rule is to confine the right to recover to those who enter into the contract; if we go one step beyond
that, there is no reason why we should not go fifty.” Id. (quoting Sav. Bank v. Ward, 100 U.S. 195,
In the instant case, according to the majority, Margaret received exactly what she
intended—a transfer of the Hanna Farm to Roy while retaining a life estate for herself. “It is
conceivable that a testator may not wish to optimize tax liability, instead seeking to further a
different goal. Id. The Ohio Supreme Court declined to extend privity from clients to intended
beneficiaries because doing so “could lead to significant difficulty and uncertainty, a breach in
confidentiality, and divided loyalties.” Shoemaker v. Gindlesberger, 887 N.E.2d 1167, 1172 (Ohio
privity requirements.153 The Ohio Supreme Court stated that this “may
well be a solution to the problem, but it is a question for another day.”154
E. Chief Justice Moyer’s Concurrence
In his concurring opinion, Chief Justice Moyer agreed with the
majority decision but noted that if this case presented different facts,
there may be special circumstances that would warrant a departure from
the strict-privity rule.155 Chief Justice Moyer noted that if the case had
involved negligence in the preparation of the will rather than negligence
in a financial transaction separate from the will, then Anna and Nola
may have had standing to sue.156 Chief Justice Moyer also noted that
harm to intended beneficiaries was more foreseeable in the preparation
of a will rather than in a financial transaction independent of a will.157
Chief Justice Moyer concluded his concurring opinion by stating there
was a strong need to hold attorneys accountable in negligence for
improperly drafting wills.158
A. The Miscalculated Precedential Value of Simon v. Zipperstein
In Shoemaker, the Ohio Supreme Court held that “a beneficiary of
a decedent’s will may not maintain a negligence action against an
attorney for the preparation of a deed that results in increased tax
liability for the estate.”159 In doing so, the Court followed its 1987
decision in Simon and maintained the strict-privity rule in Ohio for
legalmalpractice actions.160 “To reach this undesirable result, the majority
[trotted] out that old chestnut, privity.”161 However, the Supreme Court
in Shoemaker miscalculated the precedential value of Simon in a few
1. A Misstated Rule
In Shoemaker, the Ohio Supreme Court reaffirmed the holding in
Simon, which held that “an attorney may not be held liable by third
parties as a result of having performed services on behalf of a client, in
good faith, unless the third party is in privity with the client for whom
the legal services were performed, or unless the attorney acts with
malice.”162 However, Simon reaffirmed an Ohio rule that required
privity between the third party and the client, rather than privity between
the third party and the negligent attorney.163 In fact, the Ohio Supreme
Court is the only court to have interpreted the privity rule in such a
Inasmuch as the Ohio Supreme Court resolved Simon on misstated
privity grounds, it is reasonable to claim that Simon, and those cases
which have held the same, should have little precedential value within
Ohio.165 In all of the cases outside of Ohio that have addressed privity in
the legal malpractice context, the fundamental issue has always been
whether privity existed between the third party and the negligent
attorney, not whether privity existed between the third party and the
attorney’s client.166 For example, in Ward, the earliest American
statement that regarded privity as a requirement for any
legalmalpractice action, the United States Supreme Court held that, in the
absence of privity of contract, fraud, collusion, or falsehood, the attorney
did not owe the third party a duty of care.167 Although subsequent cases
have eroded the privity requirement in most jurisdictions,168 the question
of whether privity existed between the attorney and a third party remains
the central issue.169 Why would it matter whether the client and a third
party are in privity with one another? If it did, then surely attorneys
would have conflicts of interest because the attorney would have no idea
with whom the client is in privity. Whether an attorney is in privity with
a third party is the proper inquiry, as stated throughout American
The misstatement of the rule is important. In upholding strict
privity in Shoemaker, the Ohio Supreme Court relied heavily on
precedent, particularly Simon.170 However, cases such as Simon have
adopted a rule in Ohio that is inconsistent with Anglo-American law and
tradition concerning privity, and are undeserving of any significant
precedential value.171 In his concurring opinion in Shoemaker, Chief
Justice Moyer discussed the importance of holding attorneys accountable
in negligence for improperly drafting wills and the Court’s willingness
to reconsider Ohio’s privity rule if a case with the appropriate facts
presented itself.172 Perhaps the Shoemaker court would have been
willing to overturn its strict-privity rule if it accorded more weight to
policy and less weight to precedent.
2. The Need for Attorney Accountability
In Simon, Justice Brown’s dissent recognizes the need for a
relaxing of strict privity.173 In the same regard, in Shoemaker, Chief
Justice Moyer was hesitant to agree with the majority and wrote a
Third Parties, 17 NEW ENG. L. REV. 955 (1982); Barbara L. Walker, Note, Attorney’s Liability to
Third Parties for Malpractice: The Growing Acceptance of Liability in the Absence of Privity, 21
WASHBURN L.J. 48 (1981); Joan Teshima, J.D., What Constitutes Negligence Sufficient to Render
Attorney Liable to Person Other than Immediate Client, 61 A.L.R.4TH 464 (1988), superseded by
Joan Teshima, J.D., Attorney’s Liability, to One Other than Immediate Client, for Negligence in Connection with Legal Duties, 61 A.L.R.4TH 615 (1988).
167. See supra notes 19-33 and accompanying text.
168. See supra notes 34-58 and accompanying text.
170. See supra notes 141-55 and accompanying text.
171. See supra notes 162-73 and accompanying text.
172. Shoemaker v. Gindlesberger, 887 N.E.2d 1167, 1174-75 (Ohio 2008) (Moyer, C.J.,
173. See supra notes 110-12 and accompanying text.
separate, concurring opinion, which Justices Pfeifer and Lundberg
Stratton joined, adopting many of the arguments of the dissent in
Simon.174 Arguing to relax strict privity in Ohio, both the dissent in
Simon and the concurrence in Shoemaker recognized that an attorney
who negligently prepares a will is essentially immune from liability for
malpractice in Ohio.175 In this situation, “[t]he only person who has a
valid claim has suffered no loss, and the only person who has suffered a
loss has no valid claim.”176 In other words, the testator, who is in privity
with the attorney, has standing to sue, but did not suffer any loss;
whereas the intended beneficiary, who is not in privity with the attorney,
did suffer a loss, but has no standing to sue because of a lack of privity.
Otherwise, “the injury or property loss would fall to the victim, his or
her family members, or the taxpayers.”177 The loss to the intended
beneficiary would be one without a remedy. The attorney is the least
cost avoider because the attorney can prevent the loss by exercising
adequate diligence in seeking the advice of an attorney well-versed in
the point of law at issue or implementing precautionary procedures
designed to discover negligence before any resulting harm.178 Damage
to an intended beneficiary in the estate planning context is clearly
foreseeable because the intended beneficiary is the one whom the
transaction was expected to benefit.179
There is a need for attorney accountability in the preparation of
wills because without such a sanction, there is little incentive for
estateplanning attorneys to exercise reasonable care.180 In most cases, the
attorney’s negligence is not discovered until after the death of the
testator.181 Because a will operates only upon the death of the testator,
no malpractice claim may be brought because the only individual with a
valid claim is dead.182 The malpractice claim dies with the testator.
Therefore, most jurisdictions, except for nine states including Ohio, have
been unwilling to use strict privity to immunize attorneys from
malpractice liability for negligent estate planning.183
The dissent in Simon and the concurrence in Shoemaker also point
out that there is no real conflict of interest in negligent estate planning
cases.184 In drafting a will, the attorney is mindful that the testator has
employed the attorney in order to benefit a third party, and that the
intended beneficiary, not the client, will experience the consequences of
any negligence in the preparation of the will.185 The sanctity of the
attorney-client relationship can be maintained because the interests of a
third party will mirror that of the attorney’s client. At the very least, it is
unlikely to threaten the attorney’s zealous representation of her client.186
the plaintiff ‘whole.’ Erecting an impenetrable wall of privity denies those plaintiffs relief.”
Silecchia, supra note 61 at 445-46.
179. Lucas v. Hamm, 364 P.2d 685, 689 (Cal. 1961).
180. Ellen S. Eisenberg, Attorneys’ Negligence and Third Parties, 57 N.Y.U. L. REV. 126, 127
181. Silecchia, supra note 60, at 446-47.
183. Simon v. Zipperstein, 512 N.E.2d 636, 639 (Ohio 1987) (Brown, J., dissenting). These
courts have recognized the absolute immunity that would otherwise result for negligent attorneys.
184. Id. at 640; Shoemaker v. Gindlesberger, 887 N.E.2d 1167, 1174 (Ohio 2008) (Moyer,
185. Simon, 512 N.E.2d at 639. Opposing this argument, advocates for the strict-privity rule
argue that a relaxing of strict privity will hinder attorneys’ zealous representation of clients and
open the door to massive malpractice liability. Cifu, supra note 52, at 14-20. However, in the
estate planning context, the expectations of third parties likely mirror that of the testator and both
desire the same outcome. Morley, supra note 25, at 1136-37.
186. The majority opinion in Simon held that the obligation of an attorney is to represent the
needs of the client, not those of a third party not in privity with the client. Simon, 512 N.E.2d at
638. In response, Justice Brown, in his dissent, agreed but remarked:
Where the attorney’s job is to draft a will, however, the needs of the client simply
require the attorney to competently construct an instrument that will carry out the client’s
intentions as to the distribution of his or her property upon death. If the attorney
negligently fails to fulfill those needs, with the result that an intended beneficiary
receives less than the client desired, surely the client, if he or she were still alive, would
Therefore, permitting a third-party claim in the negligent estate planning
context is unlikely to have the same deleterious effects on an attorney’s
representation of her client as a third-party claim in an adversarial
proceeding.187 This is because testators take the time to properly dispose
of their property by will according to their wishes. Absent fraud, duress,
or undue influence, wills are the final embodiment of how a testator
wants to have their property distributed after death. Unlike adversarial
proceedings, where the interests of a third party may not be in line with
the attorney’s client, intended beneficiaries of wills likely share the same
desires as the attorney’s client.188 In the estate planning context, the
attorney assumes a relationship not only with the client, but also with the
intended beneficiary, because harm to both is equally foreseeable.189
For example, in Shoemaker, was it likely that Margaret desired to
have her estate liquidated in order to pay the estate taxes on the Hanna
Farm at the expense of her other two children?190 Was it equally likely
that Margaret would not have searched for an alternative mode of
disposition, perhaps a trust, had she been made aware of the tax
consequences of her transfer of the Hanna Farm? The answer is likely
“no” because Margaret took the time to see an attorney and dispose of
her property equally to her children upon her death.191 If Margaret
desired her other two children to receive nothing from her estate, she
could have disinherited them. Yet, she did not.192 Margaret wished for
her three children to share equally, and her wishes were thwarted when
want the intended beneficiary to bring an action against the attorney.
Id. at 640 (Brown, J., dissenting).
187. Morley, supra note 25, at 1136-37.
188. Id. at 1137.
189. Id. (citing Heyer v. Flaig, 70 Cal. 2d 223, 228 (1969), superseded by statute on other
grounds, CAL. CIV. PROC. CODE § 340.6 (West 1977), amended by 2009 Cal. Legis. Serv. Ch. 432
(A.B. 316) (West), as recognized in Laird v. Blacker, 2 Cal. 4th 606, 611 (Cal. 1992)). In Heyer,
the California Supreme Court explained:
When an attorney undertakes to fulfill the testamentary instructions of his client, he
realistically and in fact assumes a relationship not only with the client but also with the
client’s intended beneficiaries. The attorney’s actions and omissions will affect the
success of the client’s testamentary scheme; and thus the possibility of thwarting the
testator’s wishes immediately becomes foreseeable. Equally foreseeable is the
possibility of injury to an intended beneficiary. In some ways, the beneficiary’s interests
loom greater than those of the client. After the latter’s death, a failure in his
testamentary scheme works no practical effect except to deprive his intended
beneficiaries of the intended bequests.
Id. at 228-29.
190. See supra note 122 and accompanying text.
191. See supra notes 118-24 and accompanying text.
one child took essentially everything due to attorney malpractice.193
Attorney negligence depleted the bequests to two of Margaret’s three
children in order to pay estate taxes, and neither of the two children had
standing to sue because neither was in privity with the attorney or
Margaret.194 Not only did the children lose their inheritance, but also the
right to state a claim and have their day in court.195 Therefore, the need
for attorney accountability in the preparation of wills is too great to
3. The Lone Profession: Ohio Lawyers Should No Longer be the
Exception to the Liberal Privity Rule for Professionals
In Ohio, courts have virtually eliminated the privity rule in every
context except legal malpractice.197 Ohio has relaxed strict privity in the
fields of medicine, accounting, manufacturing, insurance, appraising,
and architecture.198 For example, in Ohio, a physician whose negligence
results in a patient’s death is responsible to the patient’s spouse for loss
of consortium or loss of services, notwithstanding a lack of privity.199
Likewise, an accountant may be held liable by a third party for
professional negligence if the third party’s reliance on the accountant
was foreseeable.200 Yet, the strict-privity rule remains in the legal
193. In Shoemaker, there was evidence that the attorney never considered the federal or state
estate tax consequences of the transfer of the Hanna Farm. Merit Brief of Appellants Robert E.
Schlegel, Executor, et al., supra note 118, at 3. In fact, Gindlesberger admitted in his deposition
that he did not learn of the existence of such consequences until after Margaret’s death. Id.
194. See supra note 122 and accompanying text.
195. Mason, supra note 20, at 390 (advocating an elimination of the privity requirement in
Nebraska because there is “potentially too much to be lost by beneficiaries--namely the right to state
a claim and have their day in court—to completely preclude them from recovery simply because
they lack a contractual relationship.”)
196. Shoemaker v. Gindlesberger, 887 N.E.2d 1167, 1174 (Ohio 2008) (Moyer, C.J.,
197. Morley, supra note 25, at 1135. “In the law of torts, the use of privity as a tool to bar
recovery has been riddled (and rightly so) to the extent that we are left with legal malpractice as,
perhaps, the only surviving relic.” Simon v. Zipperstein, 512 N.E.2d 636, 639 (Ohio 1987) (Brown,
198. See supra notes 112-18 and accompanying text.
199. See Shaweker v. Spinell, 181 N.E. 896 (Ohio 1932) (holding that a spouse could bring an
action against physicians who performed a fatal hysterectomy upon the spouse’s wife, but collect
damages only for the time between the malpractice and the wife’s death). However, because Rose
Spinell died immediately, A.T. Spinell was unable to collect damages. Id.
200. See Haddon View Inv. Co. v. Coopers & Lybrand, 436 N.E.2d 212, 215 (Ohio 1982)
(holding that “an accountant may be held liable by a third party for professional negligence when
that third party is a member of a limited class whose reliance on the accountant’s representation is
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profession.201 Why is the legal profession different from other
professionals in Ohio? After all, people have the same right to choose
their lawyer as they do their doctor. In particular, why does strict privity
remain in Ohio’s estate planning context, where there is little, if any,
conflict of interest?202 In fact, most jurisdictions that have considered
the question have recognized a limited exception to strict privity for
malpractice in the areas of negligent estate planning and non-adversarial
transactions.203 Expanding liability for attorneys will bring all
professionals under the same standard in Ohio, eliminating the special
privileges that attorneys enjoy above other professionals like physicians
Ohio’s liberal rule of privity for professionals other than attorneys
is a slippery slope, particularly when it excludes the negligent estate
planning and non-adversarial transactions of attorneys, because not all
professionals are under the same standard. Just as it is foreseeable that a
third party will rely on the services of an accountant or that a husband
will suffer a loss as a result of a physician’s negligent care of his wife, it
is equally foreseeable that an intended beneficiary will suffer harm from
a negligently prepared will.205
Although in Shoemaker there was no conflict of interest in the will
and codicil preparation as both the client and the intended beneficiary
had the same expectations and desires, there will likely be instances
where a conflict of interest will exist between the attorney, the client,
and third parties.206 However, notwithstanding privity, a third party
should be able at the very least to assert a malpractice claim if the
attorney was negligent. Just as all malpractice cases are fact-intensive
and highly circumstantial, it should be left to the judge and jury to
decide whether there was in fact negligence and whether a conflict of
interest did exist. “Obviously the main purpose of a contract for the
drafting of a will is to accomplish the future transfer of the estate of the
testator to the beneficiaries named in the will . . . .”207 The testator
communicates her wishes to the attorney of how she would like her
201. See Shoemaker v. Gindlesberger, 887 N.E.2d 1167 (Ohio 2008).
202. See supra note 186 and accompanying text.
203. See Morley, supra note 25, at 1135-36.
204. Silecchia, supra note 60, at 447-48. (“Although ‘there are distinctive aspects of
lawyerclient relationships for courts to consider,’ these may not justify completely different treatment for
members of the legal profession vis-à-vis their colleagues in other professions.”).
205. See supra notes 198-200 and accompanying text.
206. See Shoemaker v. Gindlesberger, 887 N.E.2d 1167 (Ohio 2008).
207. Lucas v. Hamm, 364 P.2d 685, 688 (Cal. 1961).
property distributed after her death and the intended beneficiary of the
will expects the testator’s intent to be carried out.208
If intended beneficiaries of wills were not permitted to bring an
action against the negligent attorney, there would be a wrong without a
remedy and a frustration of the testator’s intent.209 Though Shoemaker
suggests that a claim could be brought in the name of the estate,210 this is
unlikely. In negligent estate planning cases, it is the beneficiaries that
suffer the loss. Although oftentimes a beneficiary of a will is also the
executor of the estate, there is no guarantee that the executor will bring a
claim. In Shoemaker, the estate taxes on the transfer of the Hanna Farm
were paid out of Anna and Robert’s shares.211 Although Robert was the
executor of Margaret’s estate and may have pursued a claim on behalf of
the estate, Anna would have been left with no remedy had Robert not
chosen to do so.212 In cases like Shoemaker, the client employs the
attorney for the sole purpose of benefiting others, and the attorney
knows that negligence on her part will fall upon those intended
beneficiaries of the estate. As a matter of public policy, the one who
commits the error and causes the loss should provide the remedy.213
B. Shoemaker Implicated Two Internal Revenue Code Provisions
Regarding the Transfer of the Hanna Farm
In Shoemaker, the transfer of the Hanna Farm to Roy implicated
two Internal Revenue Code provisions, I.R.C. § 2036 and I.R.C. § 2207.
First, I.R.C. 2036 states that the value of a decedent’s gross estate shall
include, namely, any and all inter vivos transfers of which the decedent
enjoyed possession of or retained the right to income.214 In Shoemaker,
the Ohio Supreme Court invoked I.R.C. § 2036 because the transfer of
208. See id.
209. See supra note 60 and accompanying text.
210. Shoemaker, 887 N.E.2d at 1171-72.
211. See supra note 122 and accompanying text.
212. See supra notes 124-34 and accompanying text.
213. See supra note 60 and accompanying text.
214. I.R.C. § 2036(a) (2006). The Code Provision reads:
The value of the gross estate shall include the value of all property to the extent of any
interest therein of which the decedent has at any time made a transfer (except in case of a
bona fide sale for an adequate and full consideration in money or money’s worth), by
trust or otherwise, under which he has retained for his life or for any period not
ascertainable without reference to his death or for any period which does not in fact end
before his death—
) the possession or enjoyment of, or the right to the income from, the property, or
) the right, either alone or in conjunction with any person, to designate the persons
who shall possess or enjoy the property or the income therefrom.
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the Hanna Farm to Roy retained a life estate for Margaret.215 As a result,
the probate court included the Hanna Farm in Margaret’s gross estate
upon her death and the estate was charged taxes on its transfer.216
Although there is evidence that Gindlesberger was unaware of these tax
implications,217 the transfer still resulted in negligence on the part of
Gindlesberger and a depletion of Anna and Robert’s shares of the
estate.218 Perhaps, if Gindlesberger would have sought the advice of
another attorney and used an alternative means of transferring the Hanna
Farm to Roy while retaining a life estate in Margaret by way of trust or
alternative instrument, the Ohio Supreme Court would not have had to
invoke I.R.C. § 2036.
Second, I.R.C. § 2207 states:
Unless the decedent directs otherwise in his will, if any part of the
gross estate on which the tax has been paid consists of the value of
property included in the gross estate . . . . , the executor shall be
entitled to recover from the person receiving such property . . . . such
portion of the total tax paid as the value of such property bears to the
For example, in Shoemaker, the executor Robert would be able to
recover the value of taxes paid by the estate on the transfer of the Hanna
Farm to Roy. If I.R.C. § 2207 applied in Shoemaker, then Anna and
Robert would not have suffered any loss at all (excluding legal fees)
because they could recover the estate taxes from Roy, thus saving
Gindlesberger.220 If, however, I.R.C. § 2207 did not apply in
220. See id.
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Shoemaker, perhaps due to a statute of limitations issue, then
Gindlesberger was unquestionably negligent in failing to address the
estate tax apportionment issue with Margaret.221 Gindlesberger would
have been negligent in this regard because the inter vivos transfer of the
Hanna Farm to Roy ultimately depleted the shares of Anna and
Furthermore, an additional argument could be made regarding the
appreciation in value of the Hanna Farm. There is no doubt that any
competent wills and trusts attorney is aware of the payment of estate
taxes due at the death of the decedent. At the time that Gindlesberger
prepared the codicils, Gindlesberger should have been aware that the
Hanna Farm would appreciate in value, particularly with the
improvements that Roy made on the property.223 At this time,
Gindlesberger should have discussed with Margaret the possibility that
the Hanna Farm may appreciate in value to the point where estate taxes
would be due at death, which would ultimately raise the apportionment
C. Was the General Warranty Deed in Preparation of the Will or a
Financial Transaction Independent of the Will?
In Shoemaker, Chief Justice Moyer’s concurrence acknowledged
that “in a case with different facts, there would be compelling reasons
for adopting the exception we rejected in Simon.”224 The main premise
of Moyer’s concurrence was that Shoemaker involved beneficiaries
seeking to hold the testator’s attorney liable for negligence in a financial
transaction independent from the will, whereas Simon involved a
beneficiary seeking to hold the testator’s attorney liable for negligence in
the preparation of the will.225 However, when one takes a closer look at
221. See id.
222. See supra notes 121-22 and accompanying text.
223. See supra note 119 and accompanying text.
224. Shoemaker v. Gindlesberger, 887 N.E.2d 1167, 1172-73 (Ohio 2008). The exception
rejected in Simon was that “an attorney could be liable to his client’s beneficiaries for negligence in
connection with a large and loosely defined group of transactions.” Id. at 1172. Chief Justice
Moyer wrote separately in order to distinguish the Simon exception from the one proposed by
Margaret’s children in the Shoemaker case. Id.
225. Id. at 1173.
In the present case, the beneficiaries seek to hold the decedent’s attorney liable for
negligence in a financial transaction independent of the will. In particular, the
beneficiaries alleged negligence in the attorney’s preparation of a deed that transferred
the decedent’s property to her son and reserved a life estate for the decedent. In Simon,
the beneficiary sought to hold the decedent’s attorney liable for negligence in the
preparation of the will. Among other things, the beneficiary sought damages for the
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the facts of Shoemaker, one may make the argument that the attorney’s
negligence in Shoemaker did in fact occur in the preparation of the will.
According to Ohio Revised Code § 2107.01, a codicil to a will is part of
the original will.226 Further, a subsequent codicil to a will may republish
a prior will as of the date of the codicil, if consistent with the testator’s
intent.227 This doctrine is known as republication by codicil.228
In Shoemaker, attorney Gindlesberger prepared the last will and
testament of Margaret in 1986.229 In 1990, Gindlesberger prepared the
general warranty deed for Margaret that retained a life estate for
Margaret in the Hanna Farm and transferred a joint life estate in the
Hanna Farm to Margaret’s son Roy and his wife with joint right of
survivorship.230 Subsequent to the general warranty deed, Gindlesberger
also prepared two codicils for Margaret between 1994 and 1997.231
Gindlesberger prepared the first of the codicils for Margaret on October
17, 1994.232 There is also evidence in the record, according to
Gindlesberger’s office notes, that on May 31, 1996, Gindlesberger
consulted with and reviewed Margaret’s estate plan with her, Anna, and
According to the doctrine of republication by codicil, a subsequent
codicil to a will republishes the will as of the date of the subsequent
codicil.234 Margaret’s original will and testament was republished on
October 17, 1994, the date of the first codicil and four years subsequent
to the general warranty deed.235 As a result, although the deed was a
attorney’s failure to include a provision in the will renouncing an existing antenuptial
226. OHIO REV. CODE ANN. § 2107.01 (LexisNexis 1992) (“[A] ‘will’ includes codicils to wills
admitted to probate, lost, spoliated, or destroyed wills . . . but ‘will’ does not include inter vivos
trusts or other instruments that have not been admitted to probate.”).
227. See RESTATEMENT (THIRD) OF PROP.: WILLS & DON. TRANS. § 3.4 (T.D. No. 2, 1998)
(“A will is treated as if it were executed when its most recent codicil was executed, whether or not
the codicil expressly republishes the prior will, unless the effect of so treating it would be
inconsistent with the testator’s intent.”). See also Trull v. Patrick, 22 Ohio N.P. (n.s.) 385 (1920); In
re Estate of Stormont, 517 N.E.2d 259 (Ohio Ct. App. 1986); In re Will of Stocker, 26 Ohio N.P.
(n.s.) 112 (1926). This doctrine is referred to as republication by codicil.
229. See supra note 118 and accompanying text.
230. See supra note 119 and accompanying text.
231. See supra note 118 and accompanying text.
232. See id.
233. See Merit Brief of Appellants Robert E. Schlegel, Executor, et al., supra note 118, at 3.
234. See supra notes 226-28 and accompanying text.
235. Furthermore, a second codicil republished Margaret’s will and testament yet again either
on May 31, 1996 or July 3, 1997 (the record is unclear). Merit Brief of Appellants Robert E.
Schlegel, Executor, et al., supra note 119, at 3. In either case, Margaret’s will was republished
following the date of the general warranty deed. Id.
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financial transaction independent from the original will, it was no longer
independent from the republished will.236 The deed may now be
considered in preparation of the will.237
In Shoemaker, Chief Justice Moyer was hesitant in upholding
Ohio’s privity rule and seemed willing to revisit the decision of Simon
only if presented with a different set of facts.238 However, the
concurrence overlooked the facts that were present before them. Just as
the Simon majority based its holding on a misstatement of the privity
rule,239 the concern of the concurring judges in Shoemaker that the
general warranty deed was not in preparation of the will was misguided.
In fact, the general warranty deed was in preparation of the will because
it occurred before the codicils republished the will.240 Therefore, the
will was duly executed as of the date of the last codicil and
Gindlesberger was negligent for failing to discuss with Margaret the
apportionment of the estate tax liability attributable to the transfer of the
Hanna Farm with the retained life estate. In reality, the concurrence did
not need to wait for a different set of facts to revisit Simon.241 The court
could have revisited Simon in Shoemaker.
In Shoemaker, the lack of privity defense survived, but just
barely.242 Two other justices joined Chief Justice Moyer’s concurrence,
making the holding in Shoemaker not to overrule Simon a four-to-three
decision.243 The three justices who joined in the concurrence were ready
and willing to overrule Ohio’s longstanding adherence to strict privity,
and should have done so in Shoemaker. Had the concurrence taken a
closer look at the facts, the Ohio Supreme Court would have been able to
abandon its strict-privity rule.
236. See supra notes 226-28 and accompanying text.
238. Shoemaker, 887 N.E.2d at 1174-75 (Moyer, C.J., concurring).
239. See supra notes 155-58 and accompanying text.
240. See supra notes 226-28 and accompanying text.
241. See Shoemaker, 887 N.E.2d at 1174-75 (Moyer, C.J., concurring) (“For this reason, if
presented with a different set of facts, I would be in favor of revisiting our decision in Simon in the
context of the holding of Westfield Ins. Co. v. Galatis.”) (citations omitted). In Westfield Insurance
Company, the Ohio Supreme Court highlighted the importance of precedent in the American
Stare decisis is the bedrock of the American judicial system. Well-reasoned opinions
become controlling precedent, thus creating stability and predictability in our legal
system. It is only with great solemnity and with the assurance that the newly chosen
course for the law is a significant improvement over the current course that we should
depart from precedent.
Westfield Ins. Co. v. Galatis, 797 N.E.2d 1256, 1260 ¶ 1 (Ohio 2003).
242. See generally Newman, supra note 160.
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AKRON LAW REVIEW
In Shoemaker, the Ohio Supreme Court held that “a beneficiary of
a decedent’s will may not maintain a negligence action against an
attorney for the preparation of a deed that results in increased tax
liability for the estate.”244 With its decision, the Ohio Supreme Court
“[trotted] out that old chestnut, privity,”245 maintaining its strict-privity
rule for legal malpractice cases. Yet, the Court reaffirmed a rule that
was misstated and incorrectly applied when compared to the
AngloAmerican legal tradition.246 Ohio is the only jurisdiction to have
interpreted the strict-privity rule to mean privity between the client and a
third party rather than privity between the client and the attorney.247
Further, the concurring judges in Shoemaker expressed willingness to
revisit its strict-privity rule if presented with an alternative set of facts.248
However, the concurrence’s unwillingness to dissent in Shoemaker and
vote to reverse Simon was based on a misguided reservation.249
Shoemaker did present the Ohio Supreme Court with the proper set of
facts to overrule Simon. When the doctrine of republication by codicil is
applied, the deed becomes in preparation of the will, rather than a
financial transaction apart from the will.250 Although strict privity in
legal malpractice cases lives on in Ohio, the Ohio Supreme Court in
Shoemaker barely reaffirmed the rule.251 Next time, the lawyer facing
the malpractice suit may not be so fortunate.
244. Shoemaker, 887 N.E.2d at 1168.
245. Simon v. Zipperstein, 512 N.E.2d 636, 639 (Ohio 1987) (Brown, J., dissenting) (“To
reach this undesirable result, the majority trots out that old chestnut, privity.”).
246. See supra notes 159-72 and accompanying text.
247. See id.
248. See supra notes 155-58 and accompanying text.
249. See supra notes 159-72 and accompanying text.
250. See supra notes 224-43 and accompanying text.
251. See supra notes 242-43 and accompanying text.
I. Introduction .......................................................................292 II. Background........................................................................294 A. Development of the Strict-privity rule in Legal Malpractice Cases .......................................................294 B. The Eroding of the Privity Requirement in Negligent Estate Planning........................................... 296 C. Arguments For and Against Application of the Strict-privity rule in Legal-malpractice actions .......... 300 D. Development of the Privity Requirement in Negligent Estate Planning in Ohio..............................305 E. Ohio's Relaxed Privity Rule Regarding Other Professionals ...............................................................309 III. Statement Of The Case ......................................................311 A. Statement of the Facts.................................................311 B. The Court of Common Pleas of Ohio, Holmes County.........................................................................312 C. The Court of Appeals of Ohio, Fifth District..............313 D. The Ohio Supreme Court............................................314 E. Chief Justice Moyer's Concurrence............................317 IV. Analysis .............................................................................317 A. The Miscalculated Precedential Value of Simon v .
Zipperstein .................................................................. 317 B. Shoemaker Implicated Two Internal Revenue Code Provisions Regarding the Transfer of the Hanna Farm ............................................................................ 325 C. Was the General Warranty Deed in Preparation of the Will or a Financial Transaction Independent of the Will?. ..................................................................... 327 Conclusion ......................................................................... 330
1. Shoemaker v. Gindlesberger , 887 N.E.2d 1167 , 1172 (Ohio 2008 ).
2. 887 N.E.2d 1167 ( Ohio 2008 ).
3. Martin D. Begleiter , The Gambler Breaks Even: Legal Malpractice in Complicated Estate Planning Cases, 20 GA . ST. U. L. REV. 277 , 350 ( 2003 ).
4. Ultramares Corp . v. Touche, Niven & Co., 174 N.E. 441 , 445 (N.Y . 1931 ). Although the New York Court of Appeals made this statement back in 1931, it is still relevant today .
5. Begleiter, supra note 3.
6. See id.
7. Throughout American jurisprudence and in the minority of jurisdictions that have maintained strict privity, the question of whether a contractual relationship existed has always focused on whether privity existed between the negligent professional and a third party . However, in Simon v. Zipperstein , 512 N.E.2d 636 , 638 (Ohio 1987 ) [hereinafter Zipperstein], the Ohio Supreme Court maintained its strict-privity rule focusing on whether privity existed between the client and a third party .
8. Jody M. Offutt , Student Works, Expanding Attorney Liability to Third Party Adversaries for Negligence, 107 W. VA . L. REV. 553 , 553 ( 2005 ).
9. 512 N.E.2d 636 ( Ohio 1987 ).
10. Id . at 638 (citing Scholler v . Scholler , 462 N.E.2d 158 ( Ohio 1984 ) ; Petrey v . Simon , 447 N.E. 2d 1285 (Ohio . Ct. App. 1983 ); Pournaras v . Hopkins , 463 N.E. 2d 67 (Ohio . Ct. App. 1983 ); Strauch v . Gross , 462 N.E. 2d 433 (Ohio . Ct. App. 1983 ); W.D.G., Inc. v. Mutual Mfg. & Supply Co. , No. 76AP-366 , 1976 WL 190343 ( Ohio . Ct. App. Nov. 4 , 1976 )).
11. Joseph F. Edwards , Note, The Negligent Drafting of Wills and Simon v. Zipperstein: A Step Backward in Ohio Jurisprudence? , 20 U. TOL. L. REV . 133 , 134 ( 1988 ).
12. Id .
13. See infra Part III.E. and Part IV .C.
14. See infra Part II.
15. See infra Part III.
16. See infra Part IV.
17. Id .
18. Id .
19. See generally Begleiter, supra note 3 ..
20. Tracy M. Mason , Privity, Duty, and Loss: In Swanson v. Ptak , 268 Neb. 265 , 682 N.W.2d 225 ( 2004 ), The Nebraska Supreme Court Again Endorses Privity in Legal-malpractice actions, 84 NEB . L. REV. 369 , 370 - 71 ( 2005 ) (citing AM. BAR ASS'N, STANDING COMM . ON LAWYERS' PROF'L LIAB ., PROFILE OF LEGAL MALPRACTICE CLAIMS , 1996 - 1999 , at 7 ( 2001 ) ) . This figure seems even smaller when compared to malpractice claims arising from personal injury cases (24 percent of legal malpractice claims) and claims arising from real estate transactions (17 percent of legal malpractice claims) . Id.
21. Id .
22. Bradley E.S. 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 ) (citing Charleson v . Hardesty , 839 P.2d 1303 , 1307 (Nev. 1992 )) ; 1 RONALD E . MALLEN & JEFFREY M. SMITH , LEGAL MALPRACTICE § 8 .1, at 555 (4th ed. 1996 )).
23. Lief Kjehl Rasmussen, Note and Comment, Abolishing the Privity Doctrine in TexasJust Do It!, 2 TEX . WESLEYAN L. REV. 559 , 565 ( 1996 ). Traditionally, whether a plaintiff had standing to sue in negligence depended on whether that plaintiff was in privity of contract with the defendant . Id . In general, privity of contract is the “connection or relationship between two parties,
32. Mary Elizabeth Phelan, Unleashing the Limits on Lawyers' Liability? Mieras v. Debona: Michigan Joins the Mainstream and Abrogates the Privity Requirement in Attorney-Malpractice Cases Involving Negligent Will Drafting , 72 U. DET. MERCY L. REV . 327 , 332 ( 1995 ).
33. Id .
34. 111 N.E. 1050 (N.Y . 1916 ).
35. Susan Lorde Martin, If Privity is Dead, Let's Resurrect It: Liability of Professionals to Third Parties for Economic Injury Caused by Negligent Misrepresentation, 28 AM . BUS. L.J. 649 , 652 ( 1991 ).
36. MacPherson, 111 N.E. at 1051. MacPherson was not in privity of contract with the defendant Buick Motor Company . Id. Buick Motor Company had sold the automobile in question to a retailer, who ultimately sold the automobile to MacPherson . Id.
37. Id at 1053. The court reasoned that a manufacturer's duty may be extended to third parties if the “nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made.” Id. The court concluded that an automobile is a thing of danger and privity may be extended to third parties . MacPherson v. Buick Motor Co., 111 N.E. 1050 , 1053 (N.Y . 1916 ). Furthermore, the court reasoned that “[t]here is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use . ” Id at 1054.
38. Phelan , supra note 32, at 333. See Robert L. Rabin , Tort Recovery for Negligently Inflicted Economic Loss: A Reassessment , 37 STAN. L. REV. 1513 , 1532 ( 1985 ).
39. 42 P. 900 ( Cal . 1895 ).
40. Jason D. Pinkall , Comment, From Barcelo to McCamish: A Call to Relax the Privity Barrier in the Estate-Planning Context in Texas, 37 HOUS . L. REV. 1275 , 1280 ( 2000 ).
41. Buckley , 42 P. at 901-02.
50. See MALLEN & SMITH, supra note 22, § 7 .13, at 528 n.6 (listing the jurisdictions that have applied and adopted the balance of factors test) . See, e.g., Fickett v . Superior Court of Pima County , 558 P.2d 988 , 990 (Ariz. Ct. App. 1976 ); Bohn v . Cody , 832 P.2d 71 , 76 (Wash. 1992 ) (en banc).
51. Guy v. Liederbach , 459 A.2d 744 , 749 (Pa. 1983 ).
52. Douglas A. Cifu , Expanding Legal Malpractice to Nonclient Third Parties - At What Cost?, 23 COLUM. J.L. & SOC. PROBS . 1 , 11 - 12 ( 1989 ) (citing Guy v . Liederbach , 459 A.2d 744 , 750 (Pa. 1983 )).
53. Offutt , supra note 8, at 559. In Guy, an intended beneficiary who lost her bequest under a will filed suit against the drafting attorney who failed to properly direct the witnessing of the will . Guy, 459 A.2d at 747.
54. Offutt , supra note 8, at 558. Claims based on the intended beneficiary theory often arise when the attorney's negligence injures a named beneficiary under the will . Id . The cause of action arises from the attorney's duty to the client and the client's clear intent to make a gift to a thirdparty named in the will . Pinkhall, supra note 40 , at 1282.
55. Guy , 459 A.2d at 750 - 51 . The Pennsylvania Supreme Court reasoned that limiting the scope of the rule to only those beneficiaries that appear on the face of the instrument served the policy against unlimited liability for negligent attorneys . Id . Furthermore, the Pennsylvania Supreme Court adopted the principles of the RESTATEMENT (SECOND ) OF CONTRACTS § 302 ( 1981 ), which recognized a remedy to an intended beneficiary if the right of the beneficiary is “appropriate to effectuate the intention of the parties,” and “the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance .” Pinkall, supra
92. Id . at 164.
93. Id . at 166. Chief Justice Celebrezze referred to this general rule a year before Scholler, in the case of Petrey v . Simon. 447 N.E.2d 1285 , 1289 (Ohio 1983 ) (Celebrezze, C .J., dissenting). In his dissent, Chief Justice Celebrezze restated the general rule of privity from W.D.G., and quoted from Ohio's Code of Professional Responsibility, EC 5-1, “The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client . ” Id. at 1289 (emphasis added).
94. 512 N.E.2d 636 , 638 (Ohio 1987 ).
95. Id . at 636.
96. Id .at 636- 37 . In 1973, Doris Simon and Dr. Simon divorced . Id. Doris and Dr. Simon had one son , Zachary. Id. In 1974 , Dr. Simon planned to marry Mildred and sought the legal services of Zipperstein for the preparation of an antenuptial agreement . Simon v. Zipperstein , 512 N.E.2d 636 , 636 - 37 ( Ohio 1987 ). The antenuptial agreement provided that upon Dr. Simon's death, Mildred's survivorship interests in Dr. Simon's real and personal property would be limited to one half the value of the real and personal property from the date of marriage until Dr. Simon's death . Id. at 637.
97. Id .
98. Id .
99. Id . Following Dr. Simon's death, the last will and testament named Zipperstein executor of Dr. Simon's estate . Simon v. Zipperstein , 512 N.E.2d 636 , 637 (Ohio 1987 ).
100. Id .
107. Simon v. Zipperstein , 512 N.E.2d 636 , 638 (Ohio 1987 ). The Ohio Supreme Court held that “an attorney may not be held liable by third parties as a result of having performed services on behalf of a client, in good faith, unless the third party is in privity with the client for whom the legal services were performed, or unless the attorney acts with malice . ” Id . (citing Scholler v . Scholler , 462 N.E.2d 158 ( Ohio 1984 ) ; Petrey v . Simon , 447 N.E. 2d 1285 (Ohio . Ct. App. 1983 ); Pournaras v . Hopkins , 463 N.E. 2d 67 (Ohio . Ct. App. 1983 ); Strauch v . Gross , 462 N.E. 2d 433 (Ohio . Ct. App. 1983 ); W.D.G., Inc. v. Mutual Mfg. & Supply Co. , No. 76AP-366 , 1976 WL 190343 ( Ohio . Ct. App. November 4 , 1976 )).
108. Simon , 512 N.E.2d at 638. The Ohio Supreme Court quoted W.D.G.: Some immunity from being sued by third persons must be afforded an attorney so that he may properly represent his client. To allow indiscriminate third-party actions against attorneys of necessity would create a conflict of interest at all times, so that the attorney might well be reluctant to offer proper representation to his client in fear of some thirdparty action against the attorney himself . Id . (quoting W.D.G., No. 76AP-366 , 1976 WL 190343, at *3 ( Ohio Ct . App. November 4 , 1976 )). on the transfer of the Hanna Farm depleted Robert and Anna's share in the estate . Schlegel v. Gindelsberger, No. 04 -CV-076, 2005 WL 6113389, at 4 ( Ohio Ct . Com. Pl. Dec. 1 , 2005 ).
123. Schlegel , No. 05 CA 10, 2006 WL 3783537, ¶ 3. An inter vivos transfer is a transfer of property or gift made during the testator's lifetime . BLACK'S LAW DICTIONARY 729 (3d pocket ed. 2006 ).
124. Schlegel v. Gindlesberger, No. 05 CA 10, 2006 WL 3783537, ¶ 3 ( Ohio App . 5th Dist. Dec . 26 , 2006 ). Robert and Anna argued that Roy knew of Margaret's intention for all of her children to share equally in her estate, and that Roy should be responsible to pay the estate taxes on the Hanna Farm . Schlegel v. Gindlesberger, No. 04 -CV-076, 2005 WL 6113389, at 7-8 ( Ohio Ct . Com. Pl. Dec. 1 , 2005 ). Otherwise, Robert and Anna argued that Roy would receive all of Margaret's estate without any tax burden . Id. at 8.
125. Id . at 7.
126. Id . at 8. As a result, Robert and Anna argued that Gindlesberger's negligence resulted in unjust enrichment for Roy to the detriment of Robert and Anna . Id. at 4.
127. Schlegel v. Gindlesberger, No. 05 CA 10, 2006 WL 3783537, ¶ 5 ( Ohio Ct. App . Dec. 26 , 2006 ). Roy's cross-claim alleged that Gindlesberger's negligence caused Robert and Anna to sue Roy. Schlegel v . Gindlesberger, No. 04 -CV-076, 2005 WL 6113389, at 4 ( Ohio Ct . Com. Pl. Dec. 1 , 2005 ).
128. Shoemaker v. Gindlesberger , 887 N.E.2d 1167 , 1169 (Ohio 2008 ).
129. Schlegel , No. 04 -CV-076, 2005 WL 6113389, at 7. The general rule in Ohio was “that an attorney may not be held liable to third parties as a result of having performed services on behalf of a client, in good faith, unless the third party is in privity with the client for who the legal services were performed, or unless the attorney acts with malice.” Id. at 6 (quoting Simon v . Zipperstein , 512 N.E.2d 636 , 638 (Ohio 1987 )). “In Simon, the court determined that the administrator of the estate and the beneficiary lacked the requisite privity to sustain a malpractice action against the
137. Id . ¶ 20 . The Fifth District reasoned that “a judgment that leaves issues unresolved and contemplates that further action must be taken is not a final appealable order .” Id. ¶ 10. A denial of a motion for summary judgment generally is not an appealable order . Schlegel v. Gindlesberger, No. 05 CA 10, 2006 WL 3783537, ¶ 23 ( Ohio Ct. App . Dec. 26 , 2006 ).
138. Id . ¶ 24 . The Fifth District reviewed the trial court's decision de novo . Id. ¶ 25 .
139. Id . ¶ 31 . The Fifth District referenced the general rule in Ohio that “in the absence of fraud, collusion or malice, an attorney may not be held liable in a malpractice action by a beneficiary or purported beneficiary of a will where privity is lacking .” Id. ¶ 30 (citing Simon v. Zipperstein , 512 N.E.2d at 638). The Fifth District reasoned that Gindlesberger acted on behalf of Margaret and privity was only with Margaret. Schlegel v . Gindlesberger, No. 05 CA 10, 2006 WL 3783537, ¶ 31 ( Ohio Ct. App . Dec. 26 , 2006 ). In addition, Roy failed to allege fraud, collusion or malicious conduct that would justify a departure from the rule in Simon . Id.
140. Id . at ¶ 32. The Fifth District noted that “[w]ithout relaxing the concept of privity, intended beneficiaries may suffer damages without any remedy and an attorney who negligently drafts a will is immune from liability to those persons whom the testator intended to benefit under his or her will .” Id.
141. Shoemaker v. Gindlesberger , 887 N.E.2d 1167 , 1169 (Ohio 2008 ).
142. Id . at 1169 n. 2. Anne and Nola still proposed that a third-party intended beneficiary of a will may maintain a legal-malpractice action against the attorney who negligently created the will . Id. at 1169.
143. Id .
144. Id . at 1170. The Brief of Amicus Curiae Ohio Association for Justice cited cases from twenty-two jurisdictions that changed their method of approach to issues of negligence in drafting a
161. Simon v. Zipperstein , 512 N.E.2d 636 , 639 (Ohio 1987 ) (Brown , J., dissenting) ( “To reach this undesirable result, the majority trots out that old chestnut, privity .”).
162. Simon , 512 N.E. 2d at 638 (citing Scholler v . Scholler , 462 N.E.2d 158 ( Ohio 1984 ) ; Petrey v . Simon , 447 N.E.2d 1285 ( Ohio Ct. App . 1983 ); Pournaras v . Hopkins , 463 N.E.2d 67 ( Ohio Ct. App . 1983 ); Strauch v . Gross , 462 N.E.2d 433 ( Ohio Ct. App . 1983 ); W.D.G., Inc. v. Mutual Mfg. & Supply Co. , No. 76AP-366 , 1976 WL 190343 ( Ohio Ct . App. Nov. 4 , 1976 )).
163. Edwards , supra note 11, at 146.
164. Id . at 145. Edwards writes that Simon begs the question: The question is typically posed as follows: in the absence of privity between the attorney and third parties, will liability be imposed against the attorney as to those third parties who have been harmed by his negligence? To this question, the Ohio Supreme Court has responded: no, because there is no privity between the third party and the attorney's client. This response comes as close to question-begging as is possible in legal reasoning. The court has attempted to justify this position by reliance on a misstatement of the privity rule. Reasoning that since the privity rule requires privity between the third party and the attorney's client for liability to be imposed, and since there is no such privity, liability will not be imposed . Id. at 145-46.
165. Id . at 146.
166. Edwards , supra note 11, at 145. See supra notes 19-58 and accompanying text . See generally Barbara Morgan Theberge, Note, Attorney Negligence in Real Estate Title Examination and Will Drafting: Elimination of the Privity Requirement as a Bar to Recovery by Foreseeable