by Kelly Dickson Cooper
The Colorado Supreme Court upheld the strict privity doctrine for attorney malpractice claims by nonclients and reaffirmed that an attorney’s liability is limited to when the attorney has committed fraud or a malicious or tortious act, including negligent misrepresentation. Baker v. Wood, Ris & Hames, case number 2013SC551 (2016 CO 5).
In Baker, the dissatisfied beneficiaries sued the attorneys for their father and alleged as follows:
- The attorneys failed to advise their father of the impact of holding property in joint tenancy.
- The attorneys failed to advise their father that failing to sever those joint tenancies would frustrate his intent to treat his children equally with his stepchildren.
- The attorneys’ actions allowed the surviving spouse to change their father’s estate plan after his death.
- The attorneys drafted documents for the surviving spouse that were different from their father’s original plan.
- The beneficiaries were the intended beneficiaries of the client’s plan, that the attorneys failed to advise the beneficiaries of the relevant facts, and that they had suffered damages as a result.
The beneficiaries asked the Colorado Supreme Court to adopt the “California Test” or the “Florida-Iowa Rule” and set aside the strict privity rule. The Court rejected the adoption of both tests and reaffirmed the strict privity rule. The Court also held that the beneficiaries’ claims would fail under both the California Test and the Florida-Iowa Rule.
The Court put forth the following rationales for upholding the strict privity rule in Colorado:
- It protects the attorney’s duty of loyalty to the client and allows for effective advocacy for the client.
- Abandoning strict privity could result in adversarial relationships between an attorney and third parties. This could result in conflicting duties for the attorney.
- Without strict privity, the attorney could be liable to an unforeseeable and unlimited number of people.
- Expanding attorney liability to nonclients might deter attorneys from taking on certain legal matters. The Court reasoned that this result could compromise the interests of potential clients by making it more difficult to obtain legal services.
- Casting aside strict privity would increase the risk of suits by disappointed beneficiaries. Those suits would cast doubt on the testator’s intentions after his or her death when he or she is unavailable to speak.
- The beneficiaries have other avenues available to them, including reformation of the documents.
- A personal representative can pursue legitimate claims on behalf of a testator.
The Court held, “We further believe that the strict privity rule strikes the appropriate balance between the important interests of clients, on the one hand, and non-clients claiming to be injured by an attorney’s conduct, on the other.” As a result, the strict privity rule remains intact in Colorado.
by C. Jean Stewart
A successful mediation requires that the parties feel satisfied both with the process and with the outcome. Several obstacles can interfere with the parties reaching satisfaction on either or both standards. Counsel often contribute to this failure. Here are some tips on avoiding these disappointments and helping clients achieve a satisfactory outcome.
- Reluctance to participate. One obstacle to successful mediation is the failure of parties to engage in a meaningful process. Some are fearful that discussing the issues underlying litigation could be perceived as a sign of weakness and hence adopt intransigent positions that yield no room for meaningful exchange. Unfortunately lawyers can sometimes get caught in this trap as well. Particularly in emotionally charged litigation, where attorneys come to identify with their clients’ positions, counsel may decline to work cooperatively on peripheral issues or even on the primary conflict in the case because of concern that talking about the dispute itself will undermine their litigation posture. In my experience, calmly and rationally explaining to opposing counsel/parties why and how one has come to a position rarely if ever diminishes the argument and, in fact, often contributes to the other side’s better understanding of the conflict and, ultimately, to resolution.
- Misunderstanding of Opposing Party’s Position. One of the most common obstacles that I see in mediating estate and trust cases is a complete misapprehension of the feelings, attitudes and positions of the other side. Unfortunately, many attorneys contribute to this roadblock. As part of my preparation for mediation, I require both counsel and the parties to present brief statements of position. In too many mediation statements, I learn that the arguments and positions expressed are based on a total misunderstanding of what the other side is thinking and has expressed to me in their presentation of the case. It is hard to overestimate how many times I have been told “We want to settle but the other side doesn’t” – by both sides! As a mediator, I work hard to get the parties and their counsel to devote appropriate time to active listening in advance of or during the mediation session to try to separate these misunderstandings from reality.
- Negotiating Styles. While almost everyone has had some life experience with negotiations, even if only in the experience of raising children (think toddlers and teenagers), many people, including many lawyers, have immature notions of the theory and practice of negotiations. When parties and their counsel are spending a majority of their time focused on how to negotiate, they frequently lose sight of the important issues in the mediation and fail to reach a resolution that meets their needs and puts the litigation to rest. Parties and lawyers who cling to notions about the effectiveness of techniques like “we refuse to make the first offer,” or “if we offer ‘x’ they will counter with “y” and then we will offer “z”, etc., etc. or “this is absolutely our last offer,” are often relying on inappropriate notions of what contributes to effective negotiation and have lost sight of the real issues and personalities in the case at hand.
We are pleased to announce one of the 15 attorneys elected into the firm’s partnership is Rebecca Schroer, who practices in the Fiduciary Solutions group. Her partnership was effective January 1.
Schroer practices in the firm’s Denver office, effectively assisting clients with trust and estate litigation and administration, as well as estate planning. She represents corporate fiduciaries, individual fiduciaries, heirs, beneficiaries, and creditors in the resolution of probate and trust-related litigation. Schroer, among the other elected partners, is recognized for being “client-focused” and “demonstrat[ing] a level of professional and personal excellence which…epitomizes what a Holland & Hart partner should be.”
We also want to extend a welcome to Matthew Skotak, who joined Holland & Hart’s Denver office as an associate on January 4. He is also a member of the Fiduciary Solutions group. Skotak’s practice will focus on fiduciary litigation, including contested guardianships and conservatorships.