Attorney Liability to Nonclients: The Need to Re-Examine Nebraska's Privity Rule
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Authors
Volkmer, Ronald R.
Issue Date
1996
Volume
29
Issue
Type
Journal Article
Language
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Abstract
INTRODUCTION|Over fifty years ago, Professor William Sternberg, in an article entitled "Nebraska Against the Weight of Authority," called attention to "some points of law on which Nebraska is against the weight of authority." In addition to pointing out the minority status of the Nebraska Supreme Court's position, Professor Sternberg also stated the reasons or rationales given by the Nebraska court, as well as the reasons or rationales given by other courts. In the fashion of the Sternberg model, this Article will likewise examine one area in which the Nebraska Supreme Court's position is against the weight of authority. |The broader topic of this Article is the potential liability of attorneys to nonclients. The more specific inquiry is the potential liability for malpractice in the estate planning context. The prototypical case in this scenario is one in which the attorney drafts a will for a client and, due to the alleged negligence of the drafting attorney, the devise fails in whole or in part. Under these circumstances, the liability of the attorney to the "disappointed beneficiary" would depend, under traditional analysis, upon the so-called "privity" defense. |Existing Nebraska case law is well-settled in accepting the socalled "privity" defense. This Article will examine applicable Nebraska case law in detail and will contrast Nebraska law with the approaches taken by other courts in recent judicial decisions. This Article will then discuss the pertinent policy issues surrounding the "privity" debate. After analysis and discussion of the "privity" defense and the state of the law nationally, this Article concludes that the Nebraska Supreme Court's position is in serious need of re-examination and re-thinking...
Description
Citation
29 Creighton L. Rev. 295 (1995-1996)
Publisher
Creighton University School of Law