Vest, Walter D.

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University of Kentucky

Kentucky Law JournalVolume 21 | Issue 1 Article 121932Attorney and Client--Negligence of an Attorney inPreparation of a WillWalter D. VestUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Legal Ethics and Professional Responsibility Commons, and the Legal ProfessionCommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationVest, Walter D. (1932) "Attorney and Client--Negligence of an Attorney in Preparation of a Will," Kentucky Law Journal: Vol. 21 : Iss. 1 ,Article 12.Available at: https://uknowledge.uky.edu/klj/vol21/iss1/12STUDENT NOTESbe brought or sued out from any court of equity hereafter obtained,granting a divorce from the marriage contract" Thornberry v. Thorn-berry, 4 Litt. (Ky.) 251 (1823), Maguzre v. Maguire. 7 Dana (Ky.) 181(1838), Pence v. Pence, 6 B. Monroe (Ky.) 496 (1846). Perhaps thereason for the enactment of 1816 was the inconvenience that might re-sult from annulling a valid divorce upon a writ of error which mightbe prosecuted after one of the divorced parties had contracted anothermarriage; but that reason does not apply to a void divorce, which couldnever legalize a subsequent marriage of either of the parties.Kentucky Statutes, Section 950-1, provides " but no appealshall be taken to the Court of Appeals as a matter of right from ajudgment for the recovery of nor to reverse a judgment grant-ing a divorce " This statute expressly forbids the Court ofAppeals to reverse a judgment granting a divorce, although it mayreview the judgment in a divorce case in other respects. Shehan v.Shehan, 152 Ky. 191, 153 S. W 243 (1913). According to the prevailingKentucky view, it is not only the right, but the duty of the court toreview the evidence where the mind is left in doubt on issues of factinvolving alimony, or the custody and maintenance of children. Evansv. Evans, 229 Ky. 20, 16 S. W (2d) 485 (1929), or to determinewhether the property rights of the parties have been properly ad-justed. Pleasnick v. Pleasnck, 215 Ky. 281, 284 S. W 1070 (1926).BET HOWARD.ATTORNEY AND CLIENT-NEGLIGENCE OF AN ATTORNEY IN PREPARA-TION OF A WuLL.-In the recent case of Schtrmer v. Nethercutt, 157Wash. 172, 288 Pac, 265, decided in 1930, the plaintiff employed the de-fendant attorney to draw a will for the grandmother of the plaintiff.The will was duly prepared in accordance with the instructions givenby the grandmother. By the terms of the will plaintiff was a legateeand was to receive one-half of the residue of her estate. The defend-ant carelessly allowed plaintiff to witness the will thereby causingplaintiff to lose his one-half residuary share of the estate. Held, thatsince plaintiff was not permitted to take under the will he was entitledto recover the value thereof from the person responsible for its lossthrough his negligent breach of trust.The word "attorney" is derived from the Latin word attornarewhich means proxy or agent. And an attorney is essentially an agentof and for his client, the general principles which control in mattersof agency also being applicable to attorneys. The special undertakingof an attorney is to establish or protect the rights of his client, whetherrelating to life, liberty, person, reputation or property. This neces-sarily creates a relation of trust and confidence between them whichmeasures and defines the extent of the attorney's duty. The very factof employment is sufficient to raise between the parties a contractualrelation. Then, any controversy between them must be adjudicatedupon the basis of this contract, unless the wrong complained of is sometortious act, actionable per se. That actions for malpractice againstan attorney are based on breach of contract has been generally recog-KENTJcIxy LAw Jou1mNALnized. See Isharn V. Parker, 3 Wash. 755, 29 Pac. 835 (Liability ofclient for services not contemplated by contract.), Dundee Mortg., etc.,Go. v. Hughes, 20 Fed. 39 (Attorney not liable to assignee of mortgageefor error in certificate of title, the attorney having been employed bythe mortgagee.).The court in Schsrmer v. Nethercutt, supra, recognized the con-tractual element when it said, "it is a closed question in this state,for we have consistently held that such actions are based on breachof contract and controlled by statutes relating to breach of contractrelation, governed by the three-year statute of limitations"The necessity of some contractual relation between the parties wasbrought out in the case of Buckley v. Gray, 110 Cal. 339, 42 Pac. 900,decided in 1895. In that case an attorney was employed by a motherto draw a will leaving the residue of her estate, after certain specificlegacies, to her son. The attorney negligently failed to exclude cer-tain grandchildren and also caused the son to become a subscribingwitness to the will. As a consequence the son was deprived of anyshare in the estate and the son sought to hold the attorney for anamount equal to the approximate amount that the son would otherwisehave gotten. Held, that even though the son suffered great pecuniaryloss, he could not recover from the attorney, there having been noprivity of contract between them.The propriety of the decision in SeAsrmer v. Nethercutt, supra,can hardly be questioned. It was the desire of the grandmother thatthe plaintiff receive a portion of the estate and an attempt was madeto do so. And except for the error of the defendant the desire wouldhave been carried into effect. His act in causing plaintiff to witnessthe will was an omission to exercise that degree of care and skillwhich, for one in such a position of trust, could be characterized asreasonable care under the cricumstances.It cannot be contended that an attorney must know all the law.But on the contrary, as said by Lord Tenterden, "God forbid that itshould be imagined that an attorney or a counsel, or even a judge, isbound to know all the law; or that an attorney is to lose his fair rec-ompense on account of an error, being such an error as a cautiousman might fall into" Montrzou v. Jefferys, 2 C. & P 113. The courtthen, in considering the Schirmer case, could have asked the question:Would a reasonably cautious attorney allow a legatee to become one ofthe subscribing witnesses to a will? Surely this question could havebeen answered but one way. Would anyone say that the reason for theplaintiff's failure to receive his legacy was to be found anywhere ex-cept m the carelessness and negligence of the attorney? It would beextremely difficult to trace precisely the dividing line between thatreasonable skill and diligence which an attorney undertakes to furnish,and in the exercise of which he is exonorated from liability, and thatgross negligence or failure to exercise reasonable care for which he isundoubtedly responsible. But without attempting to make a classifica-tion, it would seem that the Washington court was correct when itSTUDENT NOTEScharacterized the action of the attorney in Schzrmer v. Nethercutt asfalling in the latter class.The law, in fixing liability on attorneys, must recognize that humanjudgment is fallible. Courts, as well as lawyers, disagree concerningthe many matters about which each may have a fairly fixed opinion.The law is truly a science, but an imperfect one, because it dependsfor exemplification and application upon the imperfect judgments andconsciences of men. Therefore when a attorney has used ordinary carein acquainting himself with the law his misjudgment as to the applica-tion thereof should not render him liable. But where he has carelesslyfailed to acquaint himself with those elementary legal principles thatare well established and clearly defined in the elementary books, orwhich have been declared in adjudged cases that have been duly re-ported and published a sufficient length of time to have become knownto those who exercise reasonable diligence in keeping pace with theliterature of the profession, then the law must say that he is liable tothose for whom he has engaged to exercise his knowledge and skill ina professional capacity.It is extremely difficult, if not utterly impossible, to .lay down anygeneral rule which should control the measure of liability in all cases.Each case must be decided in the light of its own peculiar circum-stances. The rule in England seems to have been that an attorney isliable to his client only in cases of gross neglect or gross incompetence.From an examination of the malpractice cases in this country, a justerrule seems to exist, that the attorney is liable for the want of such skill,care and diligence as men of the legal profession commonly possessand exercise in matters of professional employment. The general rulesgoverning the execution of testamentary instruments have been fairlywell established by a line of cases running back past the passage ofthe Statute of Wills in 1540. There seems to be no reasonable excusefor exempting from liability an attorney who has failed to follow thosefundamental rules, with which it seems imperative that every lawyershould, to a certain extent, become familiar.The legal profession cannot reasonably find fault with the ruleswhich are generally accepted concerning liability for malpractice. Theserules are necessary, as well for the protection of the legal professionas for the client for whom the attorney seeks to act.WALrTER D. VEST.JUnISDIc T -Srrus OF THE CnnrE.-A recent newspaper clippingcontained an account of the murder of A in Kentucky by B who wasstanding in West Virginia when he fired the fatal shot.The man was apprehended in West Virginia and brought up fortrial in the Wes Virginia court on the charge of murder. The judgereleased the prisoner because the courts in West Virginia did nothave jurisdiction to try the prisoner for the murder committed inanother state.The murderer will go unpunished unless he is brought to trial Ina court of Kentucky where the murder occurred. Kentucky cannot

Attorney and Client--Negligence of an Attorney in Preparation of a Will

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Attorney and Client--Negligence of an Attorney in Preparation of a Will

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