This 1995 Article addresses the question of attorney liability in New York. It begins with a brief introduction to the history of the privity requirement nationally to place the New York question in context. It then traces the scope of attorney liability in New York and examines the state of that law - with its contradictions and inconsistences. This Article proposes a rule for New York courts to consider that centers on the “adversariness” of the client and the third party as the touchstone for determining if expanded liability is appropriate.
This differs from the traditional analysis which bases the extent of non-client liability, if any, on the relationship between the attorney’s intentions and the third party. In proposing this rule, the paper reviews the approaches taken in other jurisdictions to determine what, if anything should be borrowed from those rules in creating New York’s standard. The proposed solution weighs the dangers of expanding liability against the dangers of refusing to expand liability and tries to balance those considerations in a way that fairly balances the interests of the legal profession, the clients, the public, and the injured third parties.
Lucia A. Silecchia, New York Attorney Malpractice Liability to Non-Clients: Toward a Rule of Reason and Predictability, 15 PACE L. REV. 391 (1995).