Barcelo v. Elliott

923 S.W.2d 575 (Tex. 1996)



At common law, an attorney owes a duty of care only to his or her client, not to third parties who may have been damaged by the attorney's negligent representation of the client.


After Frances Barcelo retained attorney David Elliott, the defendant, to assist her with estate planning, Elliott drafted a will and inter vivos trust agreement for her. The will provided for specific bequests to Barcelo's children, devising the residuary of her estate to the inter vivos trust. Under the trust agreement, trust income was to be distributed to Barcelo during her lifetime. Upon her death, the trust was to terminate, assets were to be distributed in specific amounts to Barcelo's children and siblings, and the remainder was to pass to Barcelo's six grandchildren, the plaintiffs. Barcelo died on January 22, 1991. After two of her children contested the validity of the trust, the probate court declared the trust to be invalid and unenforceable. Plaintiff grandchildren then filed the present malpractice action against defendant and his law firm, alleging that defendant’s negligence caused the trust to be invalid, resulting in foreseeable injury to the plaintiffs. Defendant moved for summary judgment on the sole ground that he owed no professional duty to the grandchildren because he had never represented them. The trial court granted defendant’s motion for summary judgment.


Does a lawyer, who negligently drafts a will or trust agreement, owe a duty of care to persons intended to benefit under the will or trust, even though the attorney never represented the intended beneficiaries?




The court affirmed the lower court's decision that defendant owed no professional duty of care to plaintiff under the will and reiterated Texas law that legal malpractice is governed by tort principles. According to the Court, the defendant owed a duty of care only to his client and not to third parties who may have been damaged by defendant's negligent representation of the client. The Court held that without this privity barrier, clients would lose control over the attorney-client relationship and attorneys would be subject to almost unlimited liability. Furthermore, the Court held that it was unable to craft a rule that allowed a lawsuit to proceed where alleged malpractice caused a will or trust to fail in a manner that casted no real doubt on the testator's intentions, while prohibiting actions in other situations. 

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