By John G. Farinacci, Esq.
It has long been
the rule in New York
that the personal representative of an estate could not maintain an action
against a decedent's estate planning attorney for legal malpractice because
there was no privity between the estate fiduciary and the attorney. Deeb v. Johnson, 170 A.D.2d 865, 566 N.Y.S.2d 688 (3d Dep't 1991) [enhanced version available to lexis.com subscribers], Viscardi v. Lerner, 125 A.D.2d 662, 510 N.Y.S.2d 183 (2d Dep't 1986) [enhanced version], Rossi v. Boehner, 116 A.D.2d 636, 498 N.Y.S.2d 318 (2d Dep't 1986) [enhanced version]. However,
these cases were abrogated by the Court of Appeals in June 2010 when it rendered
a decision holding that the privity necessary to
support a legal malpractice claim, or a relationship sufficiently approaching
privity, exists between the personal representative of an estate
and the estate planning attorney. Estate of Schneider
v. Finmann, 15 N.Y.3d 306
(2010) [enhanced version / unenhanced version available from lexisONE Free Case Law].
In the months that have
passed since Schneider, there has been a flurry of activity, from written
articles to bar association debates, examining the subject of estate planning
attorney malpractice and what it means for New York's estate planning bar. I have witnessed
topics addressed and debated ranging from the applicability of the statute of
limitations, the duties of attorney-custodians of original wills, and the
availability of limited letters of administration to an estate beneficiary
where the fiduciary will not bring a malpractice action on behalf of an estate -
to name just a few. However, there is
one subject that I do not think has been given much attention that deserves
careful consideration in our daily practice.
I recently participated in organizing a cross-discipline
continuing legal education program with members of the trusts and estate, elder
law and tax bars. The purpose of the program was to help attorneys that
practice in one or more of those areas to be able to spot potential issues in
the other practice areas so as to best serve their clients' interests.
But these practice areas are often at odds with each
other. For example, an elder law attorney may give advice and help facilitate
lifetime asset transfers as part of a sound Medicaid plan, but those same
assets transfers could have adverse estate and capital gains tax implications.
There is not always a clear public perception as to
the differences between an estate tax planning attorney, elder law attorney, an
attorney that specializes in business succession planning and so on. Some attorneys
are well versed in multiple disciplines and some only in one or a few. What is
clear is that no one knows everything. The expectations as to your expertise in
any given legal practice area may vary from client to client and referral
It should have always been a priority to clearly
define the limitations and parameters of your retention as an estate planning
attorney and to be careful as to how you hold yourself out to the public in
order to properly service the clients and manage their expectations. This
includes being able to spot potential issues that are outside the scope of day
to day practice area and to be sure that the client understands that you are
not going to give advice or perform work that is outside the scope of what you
do. In such a case, this may also include referring the client to, or recommending
that they seek out the advice of someone competent in the potential problem
area. However, it would seem all the more important for the estate planning
attorney to do these things for their own protection in the post Schneider
world as well as the protection of their client.
Mr. Farinacci is a partner in Ruskin Moscou Faltischek's Trusts
and Estates Department. He heavily concentrates his practice in trust
and estate litigation, having successfully handled numerous contested
cases in the New York State Surrogate's Court, Supreme Court, Supreme
Court Appellate Division, Court of Appeals and Federal District Court.
Mr. Farinacci also represents clients in estate planning, estate
administration and guardianship matters.
Prior to joining RMF, Mr. Farinacci was a partner at a Long
Island law firm, where he specialized in trust and estate matters. While
in law school, Mr. Farinacci interned for the Nassau Surrogate's Court
under Judge C. Raymond Radigan.
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