This article on  points out a gross inequity.  Estate planning attorneys can get away with murder.  Well,  not murder literally, but they get off scot-free when committing horrendous malpractice because of antiquated notions about privity.

In short, the common law view is that since the heirs and beneficiaries didn’t hire the lawyer to write the decedent’s estate plan, they can’t sue the lawyer for making mistakes.  There is no privity of contract.  And since the person who hired the lawyer is dead and isn’t going to be suing anyone, oh well, i guess there is just no remedy.

Its time for this to change.  All professionals should be responsible for the quality of their work — no exceptions.

The state law discussed in the article is New York.  Pennsylvania has a similar rule, except that in Pennsylvania, some headway can be made under third-party beneficiary  or negligence analysis.

About 18 years ago I was interviewing with the chair of a Trusts & Estates Department in a large Philadelphia firm.  I was new to Pennsylvania, having moved here from Boston.  He explained to me that estate planning was a great practice area because if you made mistakes, they weren’t found.  Since beneficiaries had no privity they couldn’t sue for malpractice.  I was appalled.  I explained, that as a matter of public policy, not to mention fairness and basic Justice, I did not think that was a good result.  I didn’t get the job.