Trusts and Estates

Gordon v. Ervin Cohen & Jessup LLP

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Cite as B313903
Filed February 23, 2023
Second District, Div. Two

By Erika J. Gasaway
Hopkins & Carley

Headnote: Legal Malpractice — Estate Planner’s Duty to Nonclients

Summary:  Where an estate planning attorney drafted for the client a trust amendment to disinherit specified grandchildren, the client’s other family members could not sue that attorney for legal malpractice for subsequently drafting LLC operating agreements that permitted the disinherited grandchildren from receiving interests in the LLCs through inter vivos gifts.

A client hired an attorney to draft a trust amendment that disinherited three of her grandchildren, all of whom were the children of one of her three sons.  Subsequently, the client asked the same attorney to create three limited liability companies that she then gifted in equal shares to each of the three sons.  Nothing in the operating agreements prohibited the sons from gifting their shares to their children.  After the client died, one of the sons and his children sued the drafting attorney for failing to draft the operating agreements in a way that would have prevented the three disinherited grandchildren from receiving any shares of the LLCs from their father.

The appellate court affirmed summary judgment in favor of the drafting attorney.  The court held that, pursuant to the eight factor test set forth in Lucas v. Hamm (1961) 56 Cal.2d 583 and its progeny, the drafting attorney did not owe a duty to the son and his children to draft the LLC operating agreements in a way that disinherited the three grandchildren.  The client’s intent to prevent the three grandchildren from receiving any shares of the LLC was not “clear, certain, or undisputed.”  The client’s undisputed intent as to the testamentary instrument was insufficient to show that she necessarily had the same intent as to her subsequent inter vivos gifts.

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