Washington Law Review


Most jurisdictions recognize a cause of action for legal malpractice against a non-client only where the attorney-client relationship is formed to benefit a third-party nonclient. This rule generally operates to preclude an attorney's potential liability to a client's adversary. Washington departed from the majority in 1992 in Bohn v. Cody, where the Washington Supreme Court found that an attorney did owe a duty to his client's adversary. Two years later, in Trask v. Butler, the supreme court modified Bohn's test for determining attorney malpractice liability to third parties to conform Washington's law with the majority of jurisdictions. This Comment suggests that the modified test improves the standard for attorney liability by restricting the cause of action to exclude non-clients in an adversarial position to the attorney's client. However, it criticizes the application of the test for its overinclusive, arbitrary, and impractical approach to the issue. The Comment argues that the test should analyze the intent of the attorney-client relationship factually, rather than as a matter of law, and should limit its threshold inquiry to whether there was an intent to benefit the nonclient.

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