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South Carolina affirms privity requirement in legal malpractice actions

In a decision filed March 23, 2009, the South Carolina Supreme Court continued its strong line of decisions requiring privity in legal malpractice actions by holding that an attorney owes no duty to a prospective beneficiary of a nonexistent will. In Rydde v. Morris, Op. No. 26619 (S.C. Sup. Ct. 3/23/09), the court considered the issue of whether an attorney's alleged failure to timely draft a will and arrange for its execution allows prospective beneficiaries to sue for legal malpractice. One month prior to her death, Johanna Knight engaged attorney Robin Morris to prepare her estate plan. She returned the estate planning questionnaire to Morris on September 22, 2005, and on September 27, 2005, Morris delivered a portion of the requested estate plan documents to Knight. The Appellants, Morris and Brandon Konija, were included as prospective will beneficiaries in the estate planning questionnaire completed by Knight. However, Knight became incapacitated on September 28 and died on October 3, 2005 without executing any of these estate planning documents.  Thus, Knight died without a will and her estate passed through intestacy.

Appellants claimed that Morris owed them a duty to draft a will for Knight between the time Morris was retained by Knight and before she became incapacitated on September 28. The trial court granted Morris' motion to dismiss pursuant to Rule 12(b)(6) and the supreme court affirmed. Acknowledging South Carolina precedent holding that an attorney-client relationship must exist before a malpractice action can be brought, the supreme court also found persuasive the policy behind decisions from New Hampshire, Connecticut and Florida which do not allow malpractice claims by non-clients for the negligent failure to draft a will. Thus, the court held that imposing "a duty on an attorney to a prospective beneficiary of nonexistent will would wreak havoc on the attorney's ethical duty of undivided loyalty to the client and force an impermissible wedge in the attorney-client relationship." Accordingly, the court concluded that it saw "no reason to depart from existing law which imposes a privity requirement as a condition to maintaining a legal malpractice claim in South Carolina."

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 GWB's Professional Negligence Team has experience in defending negligence actions on behalf of accountants, attorneys, dentists, hospice, hospitals, nurses, physicians, insurance and real estate professionals. Additionally, they have substantial experience advising and representing long term care providers, including nursing homes, assisted living facilities, and continuing care retirement communities in matters related to minimizing liability and avoiding professional malpractice actions.  Further, they advise and counsel professionals on matters outside of litigation, including alternative dispute resolution, and administrative and regulatory matters.