“We decline to change the rule of law in this state that bars an
action for negligence against a lawyer by a plaintiff who is not in privity
with the client.”1
With those words in Shoemaker v. Gindlesberger,2 the Ohio
Supreme Court upheld its antiquated strict-privity rule for legalmalpractice
actions and remained in the minority of jurisdictions that
still adhere to the rule that an attorney owes a duty of care only to her
own client.3 However, “[t]he assault upon the citadel of privity is
proceeding in these days apace.”4 Today, the majority of states have
abandoned the strict-privity rule in favor of permitting a third party to
state a claim against a negligent attorney in the estate planning context.5
Some have adopted a “balance of factors” test while the majority of
jurisdictions have focused on the intent of the testator for an intended
beneficiary to take under the will.6 However, in the minority of
jurisdictions, including Ohio, third parties not in privity with the
attorney or the client7 may not state a claim against a negligent attorney.
In these states, attorneys remain the exception—among other
professionals including doctors, accountants, appraisers, engineers, and
architects—to liability from third parties for negligence, notwithstanding
privity of contract.8