Taxation & Estate Planning

Suing Your Estate Planning Attorney For Malpractice in Ohio

By Michael D. Bonasera, Esq.

I have written before about some pretty poor estate plans; some so bad that I can’t imagine them having ever done anyone any good such that they now seem only to serve as wanton conduits for human despair.  And I have also often commented that someone ought to sue such’n’such attorney for malpractice.  Skip ahead… I was combing through my analytics results this morning and saw the below search inquiry that lead a visitor to my site last week:

I touched on this issue last year in this post about Ohio’s privity rule and the Zipperstein case that birthed it and so I write here again to remind people that, yes, Ohio still adheres to its antiquated “privity rule” in order to sue an attorney for malpractice. 

In summary, this rule states that in order to sue an attorney for malpractice you must have been in privity with that attorney.  (There are some exceptions for malice and collusion.)  In the estate planning context this means that you must have been the one who engaged the attorney’s services to draft the document that you are alleging they messed up.  Sounds innocent enough, however, no damage actually results from a poorly drafted will until after the person who engaged the attorney to draft the will - the only person in privity with the attorney- is dead…  All of sudden, there is no one left who was in privity with the attorney.  All of a sudden there is no one left to sue the attorney for their poor work product and therefore there is no accountability…  Attorneys can still be subject to state disciplinary action but there should be civil malpractice liability as well.

I have written an article on this subject and have also given multiple speeches on how to change this problem for the citizens of Ohio.  It needs done soon.  We just need the right case to make it happen.

Full post as published by The Ohio Trust & Estate Blog on February 08, 2009 (boomark / email).