OPINION
Alma Francis challenges the district court’s grant of summary judgment dismissing her legal malpractice claim. Because Francis was not Piper’s client and was not an intended third-party beneficiary of the attorney-client relationship, we affirm.
FACTS
Alma Francis brought this action against LaMar Piper and the Piper Law Firm (collectively Piper), alleging Piper committed legal malpractice when he drafted a series of wills for Walter Heine, Francis’s brother. Heine, who had never married, had no children; Francis was his sole sibling and closest living relative. In 1987, after Heine suffered a stroke, the district court appointed a conservator for him.
In 1990, Heine met Linda Resick, a waitress at a deli he frequented. In December 1991, Resick referred Heine, who did not have a will, to Piper. Piper prepared three successive wills for Heine. The first left all of Heine’s estate to a church. The second left $20,000 to Resick and the remainder of Heine’s estate to a church. The third left all of Heine’s estate to Resick. If Heine had not executed a will, Francis would have been Heine’s sole heir under the intestacy laws.
After Heine’s death, Resick submitted the third will to probate. Francis challenged the will, and eventually reached a settlement with Resick that provided Re-sick would receive $80,000 and Francis the remainder of Heine’s estate. Francis then brought this action against Piper, alleging Piper was negligent because Heine was under a conservatorship, lacked testamentary capacity, and was suffering from the effects of undue influence. Piper moved for summary judgment, asserting Francis could not bring a legal malpractice action against him, and the district court granted his motion. Francis appeals, asserting the district court erred in granting summary judgment and, for the first time on appeal, that Piper is also liable based on a direct negligence action.
ISSUES
I. May Francis, who was never an intended third-party beneficiary of Heine’s attorney-client relationship with Piper,
II. May Francis bring a direct negligence action against Piper on the basis that no attorney-client relationship existed between Piper and Heine?
ANALYSIS
On appeal from summary judgment, this court examines whether there is any genuine issue of material fact and whether the district court erred in its application of the law.
State by Cooper v. French,
I.
An attorney is liable for professional negligence “to a person with whom the attorney has an attorney-client relationship.”
Marker v. Greenberg,
The requirement that the third party be an intended beneficiary is a threshold requirement for an attorney to have a duty to a third party. In
Marker
and subsequent cases the supreme court’s and this court’s analyses of an attorney’s liability to a third party begin with an examination whether the third party was an intended beneficiary.
See id.
at 5-6 (determining third party was not an intended beneficiary and not reaching multi-factor analysis);
Admiral Merchants Motor Freight, Inc. v. O’Connor & Hannan,
The cases extending the attorney’s duty to non-clients are limited to a narrow range of factual situations in which the client’s sole purpose in retaining an attorney is to benefit directly some third party.
[A]n intended third-party beneficiary may bring an action for legal malpractice in those situations when the client’s sole purpose is to benefit the third party directly, and the attorney’s negligent act caused the beneficiary to suffer a loss. In these limited situations, the determination [of whether to recognize liability] is a matter of balancing the [multi-factor analysis].
Other jurisdictions have made this a threshold requirement.
See Needham v. Hamilton,
to a non-client when and to the extent that:
the [attorney] knows [the] client intends as one of the primary objectives of the representation that the [attorney’s] services benefit the non-client.
Restatement (Third) of the Law Governing Lawyers § 73(3) (Tentative Draft No. 8, Mar. 21, 1997); see also id. § 73 cmt. f (“A duty to third persons hence exists only when the client intends to benefit the third person as one of the primary objectives of the representation * * *.”).
Limiting legal malpractice actions to non-clients who were intended third-party beneficiaries avoids creating a conflict of interest for the attorney by imposing a duty on the attorney to both the client and the third party. If an intended beneficiary brings an action, the action is not
a case in which the ability of a nonclient to impose liability would in any way affect the control over the contractual agreement held by the attorney and his client, as the interests of the testatrix and the intended beneficiary with regard to the proper drafting and execution of the will are the same.
Needham,
Francis is not able to satisfy this threshold requirement to bring a legal malpractice action against Piper. Nothing in the record indicates Heine ever intended to benefit Francis. Moreover, the evidence in the record shows Heine knew that execution of a will would be detrimental to Francis. The district court did not err in granting summary judgment. Because Francis has not shown she was an intended third-party beneficiary of Heine’s attorney-client relationship with Piper, we do not reach the multi-factor analysis.
II.
Francis asserts, for the first time on appeal, that in the alternative she can maintain a direct negligence action against Piper because there was no attorney-client relationship between Piper and Heine. She bases her assertion on
In re Conservatorship of Nelsen,
In
Nelsen,
this court held that a person under a conservatorship that requires the conservator to approve any contract, except a contract for necessities, cannot enter into a contract with an attorney.
But the attorney-client relationship can also be formed under a tort theory.
See Togstad v. Vesely, Otto, Miller &
[a]n attorney-client relationship is created whenever an individual seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on such advice.
Id.
at 693 n. 4. The court in
Nelsen
did not reach the tort theory.
DECISION
Francis has not shown she was an intended third-party beneficiary of Heine and, thus, cannot bring a legal malpractice action against Piper.
Affirmed.
Notes
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.