Kimberly Ann Ferguson et al. v. Steven J. Cramer et al. - No. 82, 1997 Term
ATTORNEY — MALPRACTICE — Personal representative, but not beneficiary, under a will
may bring malpractice action against attorney retained by the personal representative.
Circuit Court for Anne Arundel County
Case # C-94-17453 OL
IN THE COURT OF APPEALS OF MARYLAND
September Term, 1997
KIMBERLY ANN FERGUSON et al.
STEVEN J. CRAMER et al.
Bell, C. J.
Opinion by Chasanow, J.
Filed: May 21, 1998
In the instant case, we are called upon to determine whether a beneficiary under a will
may maintain a cause of action for professional malpractice against an attorney retained by
the personal representative of the testator’s estate. We recently held that, as a matter of law,
a nonclient, testamentary beneficiary could not maintain a cause of action for professional
malpractice against the testator’s attorney for negligently drafting the testator’s will or
providing negligent estate planning advice where there was a lack of privity between the
beneficiary and the attorney. Noble v. Bruce,
(1998)(Slip Op. No.
7, 1997 Term). We believe that the Noble decision is controlling and therefore affirm the
judgment of the Court of Special Appeals.
The following facts alleged in the complaint and the exhibits thereto were before the
Court of Special Appeals. Petitioners (the beneficiaries) are the heirs of Dennis Webster
Eckes. On April 15, 1991, Mr. Eckes died. The will designated Paula Eckes as the personal
representative.1 On April 24, 1991, Ms. Eckes and Respondent, Steven Cramer, entered into
a retainer agreement for Cramer “to represent her in handling and administering” Mr. Eckes’s
estate. This agreement, attached to the complaint as an exhibit, named Ms. Eckes as the
client. The agreement was entered “for the purpose of representation and all appropriate
legal action by the law firm for handling [the] estate of Dennis Eckes.” The agreement
provided that Cramer’s fee was to be set by the court and that Ms. Eckes agreed to “pay all
Ms. Eckes is the ex-wife of Mr. Eckes and the mother of the beneficiaries. Ms.
Eckes was not named as a beneficiary under Mr. Eckes’s will.
reasonable and necessary costs arising during the handling of this claim.”
In their complaint, the beneficiaries alleged that “as the only heirs of the Estate of
Dennis Webster Eckes, [they] were specifically intended to be the beneficiaries of Cramer’s
service as attorney for the estate of Dennis Webster Eckes.” In addition, the beneficiaries
claimed that Cramer owed a duty to assist Ms. Eckes in carrying out her duties as the
personal representative of the estate and a duty “to exercise that degree of care and diligence
in pursuing the administration of the Estate of Dennis Webster Eckes as used by attorneys
engaged in the practice of law.” It is further alleged that Cramer breached his duty to the
beneficiaries of the estate and that this breach caused both the beneficiaries and the estate
to suffer long-term economic loss. The beneficiaries also alleged suffering emotional trauma.
Specifically, the beneficiaries first asserted that Cramer failed to properly obtain
accurate appraisals of the testator’s assets, including the inventory of Mr. Eckes’s business,
resulting in an overvaluation of estate assets.2 The beneficiaries further alleged that Cramer
directed the inventory of Mr. Eckes’s business to be appraised at its highest retail value.
This overvaluation in turn resulted in an increase in the value of Mr. Eckes’s gross estate
upon which federal and state estate taxes were paid. Once the inventory of Mr. Eckes’s
business was sold, the beneficiaries assert that substantial legal and accounting fees were
expended to obtain refunds from the federal and state governments, presumably due to an
According to the complaint, the beneficiaries filed exceptions to the first accounting,
and the Orphans Court for Anne Arundel County subsequently permitted an amended
inventory to be filed to reflect the actual valuation of the estate.
overpayment in estate taxes. In addition, the beneficiaries alleged that Cramer failed to
adequately advise Ms. Eckes regarding the administration of the estate and the filing of
accurate accountings. Finally, the beneficiaries claimed that Cramer failed to adequately
advise Ms. Eckes regarding: 1) the estate’s rights to the payment of trademark and
tradename licensing fees and copyright royalty payments from Edgewater Book Distributors,
Inc.; and 2) the estate’s rights to copyright royalty payments from Dr. James Beckett, III
under a publisher-author agreement. The complaint indicates that the beneficiaries retained
their own attorney during the administration of Mr. Eckes’s estate and that in March 1993
their counsel contacted Edgewater and demanded payment of the licensing fees and royalties.
The beneficiaries filed their complaint against Cramer and his law firm, Bodie, Nagle,
Dalina, Smith & Hobbs (the Respondents) on December 9, 1994. The Respondents later
filed a motion to dismiss. On July 8, 1996, the Circuit Court for Anne Arundel County
granted the Respondents’ motion, ruling that the third-party beneficiary exception to the
strict privity rule did not apply and that there was no privity between the beneficiaries and
Cramer. On appeal, the Court of Special Appeals in a reported opinion affirmed the trial
court’s judgment. Ferguson v. Cramer, 116 Md. App. 99, 695 A.2d 603 (1997). We granted
the beneficiaries’ petition for writ of certiorari on November 17, 1997.
The beneficiaries argue that Ms. Eckes, as the personal representative for Mr. Eckes’s
estate, hired Cramer with the specific intent to directly benefit the beneficiaries, and thus the
beneficiaries have standing to sue Cramer under the third-party beneficiary exception to the
strict privity rule as set forth in our decisions in Flaherty v. Weinberg, 303 Md. 116, 492
A.2d 618 (1985) and Prescott v. Coppage, 266 Md. 562, 296 A.2d 150 (1972). In a decision
rendered prior to our opinion in Noble, the Court of Special Appeals held in the case sub
judice that the third-party beneficiary exception to the strict privity rule did not apply under
the circumstances and that the beneficiaries did not have standing to bring a malpractice
action against Cramer because no attorney-client relationship existed between the
beneficiaries and Cramer. See Ferguson, 116 Md. App. at 112-13, 695 A.2d at 609. We
In Noble, we examined whether a nonclient, testamentary beneficiary could maintain
a cause of action against the testator’s attorney for malpractice arising out of will drafting
or estate planning.
(Slip Op. at 1). We noted that Maryland
as a general rule adheres to the strict privity rule in attorney malpractice cases and that,
where the risk created by negligent conduct is one of economic loss and not death or serious
personal injury, the attorney owes no tort duty to the beneficiaries absent privity or its
equivalent. See Noble, ___ Md. at ___, ___ A.2d at ___ (Slip Op. at 7). In order to state a
cause of action for malpractice against an attorney, the first element that a plaintiff must
allege and prove is the existence of a duty between the plaintiff and the defendant;
specifically, the plaintiff must allege and prove the attorney’s employment.3 Flaherty, 303
In addition to the attorney’s employment, a plaintiff must allege the attorney’s
neglect of a reasonable duty and loss to the client proximately caused by that neglect of duty.
Flaherty v. Weinberg, 303 Md. 116, 128, 492 A.2d 618, 624 (1985).
Md. at 128, 492 A.2d at 624. This Court, however, has recognized the third-party
beneficiary exception as a limited exception to the strict privity rule. See Flaherty, 303 Md.
at 131, 492 A.2d at 625-26. In order for the third-party beneficiary exception to apply, this
Court explained that the nonclient
“must allege and prove that the intent of the client to benefit the
nonclient was a direct purpose of the transaction or relationship.
In this regard, the test for third party recovery is whether the
intent to benefit actually existed, not whether there could have
been an intent to benefit the third party.”
Flaherty, 303 Md. at 130-31, 492 A.2d at 625. After examining the various approaches
taken by jurisdictions regarding attorney liability to nonclients,4 we held in Noble that the
third-party beneficiary exception did not apply because the direct purpose and intent of the
testator/client in executing a will was not necessarily to benefit the beneficiaries named in
(Slip Op. at 26-27). Thus, under the traditional
rule of strict privity, the beneficiaries could not maintain a malpractice action against the
attorneys because no employment relationship existed between the beneficiaries and the
(Slip Op. at 27). This Court reasoned that
there were compelling policy reasons for the application of the strict privity rule including:
1) the protection of the integrity and solemnity of wills; and 2) the protection of the attorneyclient relationship. Noble,
(Slip Op. at 29). We believe that
The three approaches are: 1) the strict privity theory; 2) the third-party beneficiary
theory; and 3) the balancing of factors theory. See Noble v. Bruce,
(1998)(Slip Op. No. 7 at 7, 1997 Term) for our discussion of these three
the Noble decision is controlling, and thus, the third-party beneficiary exception does not
apply in the instant case.
The application of the third-party beneficiary exception in an attorney malpractice
case dates back to 1972. See Prescott, supra. In Prescott, Coppage as the receiver for
Security Financial Insurance Corporation (Security), a creditor of Maryland Thrift Savings
and Loan Company (Maryland Thrift), sued Medley, the court-appointed receiver for
Maryland Thrift. 266 Md. at 565, 296 A.2d at 152. One of Medley’s duties set forth in the
court order appointing him was “‘to take possession of [Maryland Thrift’s] assets and
property and hold or dispose of them under the direction, supervision and further order’” of
the court. Prescott, 266 Md. at 574, 296 A.2d at 156. Coppage also sued Prescott who was
specially appointed by the court as counsel “to aid [Medley] in the performance of his duties
as receiver.” Id. Coppage alleged that Medley and Prescott improperly distributed Maryland
Thrift’s assets to lower priority creditors instead of paying the balance due on Security’s
priority claim in the amount of $40,000. Prescott, 266 Md. at 565, 296 A.2d at 151. This
Court stated that, in order to determine who is a creditor beneficiary, courts should consider
the following as controlling factors: “the intention of the parties to recognize a person or
class as a primary party in interest as expressed in the language of the instrument and
consideration of the surrounding circumstances as reflecting upon the parties’ intention....”
Prescott, 266 Md. at 574, 296 A.2d at 156. This Court further noted that the court order
appointing Medley as the receiver clearly indicated that all of Maryland Thrift’s creditors
were third-party beneficiaries and that the court order appointing Prescott “by necessary
implication bound him to those creditor beneficiaries.” Id. Thus, as court-appointed
counsel, Prescott owed a duty to the court as well as to any beneficiaries the court intended
to benefit. We held that the acceptance by Medley and Prescott of the duties entailed in the
court order created conditions that gave Coppage standing to sue Prescott as a third-party
creditor beneficiary. Id.
The beneficiaries claim that the legal relationships in the instant case are virtually
identical to those in Prescott. Specifically, the beneficiaries assert in their brief that they are
third-party beneficiaries because the court-appointed “personal representative (fiduciary)
hired ... Cramer (attorney) with an actual intent to directly benefit the heirs (beneficiar[ies])
by aiding the personal representative in the performance of her duties.” We, however,
believe Prescott is distinguishable because the instant case does not involve a receivership.
Prescott involved a receivership for which a receiver was specifically appointed by the court
for the purpose of taking possession of Maryland Thrift’s assets and holding or disposing of
them for the benefit of the creditor beneficiaries, and the receiver’s attorney was specifically
appointed by the court in order to aid the receiver in the performance of his duties. See
Prescott, 266 Md. at 574, 296 A.2d at 156. In a receivership proceeding, property taken “is
in the custody of the court and the receivers are merely the agents of the court to hold it and
manage it” for the benefit of parties in interest, including creditors. Mathias v. Segaloff, 187
Md. 690, 696-97, 51 A.2d 654, 657 (1947). “The title is subject to the authority of the court
to direct the receivers to make some disposition of the property. Until the court does so act,
the receivers have no authority to abandon any property or give it back to the debtor. So long
as they are not discharged ..., they still have control over it.” Mathias, 187 Md. at 697, 51
A.2d at 657. By contrast, in the administration of an estate, the court is not as involved. In
performing his or her duties, a personal representative may act “without application to, the
approval of, or ratification by the court.” Maryland Code (1974, 1991 Repl. Vol., 1997
Supp.), Estates & Trusts Article, § 7-401(a).5
In addition, the duty of the receiver differs from that of the personal representative.
See Melba Inv. Atl. v. Mimi Selig Homes, 44 Md. App. 234, 235, 238, 407 A.2d 808, 808,
810 (1979)(noting that a receiver’s role is to protect the interests of all creditors, not just the
petitioning creditor). Unlike a receiver, who owes a specific duty to all creditors, a personal
representative is a fiduciary and
“[h]e is under a general duty to settle and distribute the estate of
the decedent in accordance with the terms of the will and the
estates of decedents law as expeditiously and with as little
sacrifice of value as is reasonable under the circumstances. He
shall use the authority conferred upon him by the estates of
decedents law, by the terms of the will, by orders in proceedings
to which he is a party, and by the equitable principles generally
applicable to fiduciaries, fairly considering the interests of all
interested persons and creditors.”
§ 7-101(a). As one court has explained, the primary goal of the personal representative is
“to serve the interests of the estate, not to promote the objectives of one group of legatees
over the interests of conflicting claimants.” Goldberg v. Frye, 266 Cal. Rptr. 483, 489 (Cal.
Ct. App. 1990). Thus, in administering the estate in accordance with the will, a personal
Unless otherwise indicated, all statutory references will be to Maryland Code (1974,
1991 Repl. Vol., 1997 Supp.), Estates & Trusts Article.
representative has a general duty to consider the interests of all interested persons and
creditors, including beneficiaries, and is not merely an agent of the court.
Moreover, it cannot be said in the instant case that the intent of the personal
representative was to benefit the beneficiaries of the estate and that such an intent was the
direct purpose of Ms. Eckes’s hiring an attorney to assist her in handling Mr. Eckes’s estate.
In performing his or her duties, a personal representative is permitted, under § 7-401(a), to
“exercise all of the power or authority conferred upon him by statute or in the will, without
application to, the approval of, or ratification by the court. Except as validly limited by the
will or by an order of court, a personal representative may ... exercise the powers enumerated
in this section.” Specifically, § 7-401(w) permits a personal representative to employ
“persons with special skills,” such as an attorney, to advise or assist the personal
representative in performing his or her administration duties.6 By its express terms, § 7401(w)’s purpose appears to be to permit the personal representative to seek the advice of
an attorney in performing his or her duties rather than to provide representation to creditors
and beneficiaries of the estate. Thus, where a personal representative hires an attorney to
assist him or her in handling the estate, as in the instant case, the direct purpose in hiring the
attorney is not to benefit the beneficiaries. As the Court of Special Appeals noted, any
benefit to the beneficiaries from the personal representative’s attorney is merely incidental.
We note that such employment is not subject to court approval. See § 7-401(a). A
receiver, however, is prohibited from hiring an attorney without prior approval of the court.
See Maryland Rule 13-301(a).
Ferguson, 116 Md. App. at 109, 695 A.2d at 608. Such incidental benefit is not sufficient
to impose a duty upon an attorney. See Flaherty, 303 Md. at 131 n.6, 492 A.2d at 625 n.6.
In cases such as the instant case, the attorney owes a duty solely to his or her client, the
personal representative. See Walton v. Davy, 86 Md. App. 275, 285, 586 A.2d 760, 765
(noting that, where the personal representative was also a beneficiary, the attorney of record
for the estate owed a duty to the personal representative to advise and aid the personal
representative in the distribution of the estate and that the attorney did not represent the
personal representative, or any other beneficiary, personally), cert. denied, 323 Md. 309, 593
A.2d 669 (1991).
Furthermore, the beneficiaries in the instant case did not allege in their complaint that
Ms. Eckes intended the beneficiaries to benefit directly from Cramer’s services as an
attorney. See Flaherty, 303 Md. at 139, 492 A.2d at 629-30. Instead, the beneficiaries
alleged in the complaint that, “as the only heirs of the Estate of Dennis Webster Eckes, [the
beneficiaries] were specifically intended to be the beneficiaries of Cramer’s service as
attorney for the estate.” The beneficiaries’ status as the only heirs of Mr. Eckes does not
automatically make them third-party beneficiaries of the contract between Cramer and Ms.
Eckes. As we noted in Noble, “‘[t]here is a critical difference between being the intended
beneficiary of an estate and being the intended beneficiary of a contract between a lawyer
and his client.’”
(Slip Op. at 26)(quoting Copenhaver v.
Rogers, 384 S.E.2d 593, 596 (Va. 1989)).
A number of jurisdictions, some of which do not ordinarily subscribe to the strict
privity theory, have decided the same issue before this Court and have held, as a matter of
law, that beneficiaries under a will do not have standing to sue the personal representative’s
attorney. See, e.g., Goldberg, 266 Cal. Rptr. at 489 (applying the balancing of factors test);
Hopkins v. Akins, 637 A.2d 424, 428-29 (D.C. 1993)(applying the strict privity rule); Neal
v. Baker, 551 N.E.2d 704, 706 (Ill. App. Ct.)(holding that the third-party beneficiary theory
did not apply), appeal denied, 555 N.E.2d 378 (Ill. 1990); Goldberger v. Kaplan, Strangis
and Kaplan, 534 N.W.2d 734, 738 (Minn. Ct. App. 1995)(applying the balancing of factors
test to assist court in determining whether beneficiaries were third-party beneficiaries of the
attorney-client relationship); Trask v. Butler, 872 P.2d 1080, 1085 (Wash. 1994)(applying
the balancing of factors test). These courts have reasoned that beneficiaries under a will are
not third-party beneficiaries of the attorney-client relationship because the direct purpose of
the contract between the attorney and the personal representative is not to provide a benefit
to the beneficiaries. See, e.g., Goldberg, 266 Cal. Rptr. at 489; Neal, 551 N.E.2d at 706.
In addition, a primary concern addressed by these courts is the potential conflict of interest
that may arise during estate administration between the personal representative and the
beneficiaries. See, e.g., Trask, 872 P.2d at 1085; Goldberger, 534 N.W.2d at 739. Finally,
these courts reason that the personal representative owes the beneficiaries under a will a duty
to act in the best interests of the estate, and where the personal representative’s conduct falls
below the standard of care the beneficiaries may sue the personal representative for breach
of fiduciary duty. See id. “By directing estate beneficiaries to file suit against the personal
representative for breach of fiduciary duty, we properly place the emphasis of estate
decisionmaking upon the correct individual--the personal representative.” Trask, 872 P.2d
Although there are not the same problems with proof as in Noble,7 there are
compelling policy reasons for the application of the strict privity rule in the instant case.
First, other procedures are available to protect the beneficiaries’ interests from malpractice.
See Goldberger, 534 N.W.2d at 739. In the instant case, the intermediate appellate court
reasoned that the personal representative’s attorney would not be shielded from liability if
the beneficiaries had no cause of action as a matter of law because the beneficiaries would
be permitted to sue the personal representative for breach of fiduciary duty and the personal
representative in turn could sue his or her negligent attorney for malpractice. Ferguson, 116
Md. App. at 110-11, 695 A.2d at 608. We agree. Under § 7-403, “[i]f the exercise of power
concerning the estate is improper, the personal representative is liable for breach of his
fiduciary duty to interested persons for resulting damage or loss to the same extent as a
trustee of an express trust.” This remains true even where the personal representative hires
an attorney and relies on his or her advice. See Ayers v. Liller, 65 Md. App. 178, 183-84,
499 A.2d 1309, 1312-13 (1985). Thus, where the personal representative’s exercise of
power in administering the estate is improper and the statute of limitations has not run,
In Noble, we noted that “[a]ttorney malpractice cases involving nonclients and arising
out of will drafting or estate planning require special considerations because the
testator/client is dead.”
Md. at ,
(Slip Op. at 27). Extrinsic evidence
is therefore not admissible to prove that the testator’s intent differed from the intent
expressed in the will.
(Slip Op. at 27). Here, however, the
personal representative-client is alive unlike the testator/client in Noble.
beneficiaries under a will could bring an action against the personal representative for breach
of fiduciary duty. Any cause of action the beneficiaries may have had in the instant case
should have been brought against the personal representative, the beneficiaries’ mother. The
beneficiaries cannot attempt to insulate their mother from liability by asserting instead that
her attorney breached a duty owed to the beneficiaries. If, however, an attorney gives
negligent advice to the personal representative, then he or she as the client would have a
cause of action against the attorney for malpractice. The attorney therefore would not be
shielded from liability for malpractice. In addition, beneficiaries under a will may seek
removal of the personal representative if he or she is unable or incapable of discharging his
or her duties and powers effectively, or “has failed, without reasonable excuse, to perform
a material duty pertaining to the office.” § 6-306(a)(3) & (6).
The strict privity rule also protects the attorney-client relationship. In this case, the
intermediate appellate court reasoned that “allowing a beneficiary to sue the personal
representative’s attorney could subject the attorney to an impermissible conflict of interest
when the interests of the personal representative, acting on behalf of the estate, conflict with
the interests of the beneficiary.” Ferguson, 116 Md. App. at 111, 695 A.2d at 608. The
personal representative’s duty is not to promote the interests of one group of beneficiaries
over the conflicting interests of another group. In this capacity, the personal representative
is “obligated to communicate with, and to arbitrate conflicting claims among, those interested
in the estate.” Goldberg, 266 Cal. Rptr. at 489. In representing the personal representative,
the personal representative’s attorney has the same responsibilities. Id. Allowing a cause
of action in the instant case could interfere with the attorney’s ability to fulfill his or her duty
of loyalty to the client and compromise the attorney’s ability to represent the client zealously
because the beneficiary often “becomes the opposing party in an adversarial forum” during
the administration of an estate. See Neal, 551 N.E.2d at 706. According to the beneficiaries,
the complaint in the instant case alleged facts which do not indicate a conflict among the
beneficiaries and the personal representative. The beneficiaries also claim that “it is ethically
permissible for an attorney to represent both the fiduciary and the beneficiaries as long as
they ‘desire the same result,’ even if their interests may vary in degree.” We disagree.
“It is the potential for conflict that makes direct suit by the beneficiary unacceptable;
the fact that the interests of the personal representative and the beneficiary may be aligned
in a particular case does not render the suit acceptable.” Goldberger, 534 N.W.2d at 739
(emphasis in original). Although the personal representative was not a beneficiary in the
instant case, the interests of the personal representative and the interests of the beneficiaries
were in fact adverse. The beneficiaries filed exceptions to the personal representative’s
accounting of Mr. Eckes’s estate, resulting in an adversarial proceeding. The beneficiaries
also hired their own attorney to represent them regarding the royalty payments from
Edgewater. As we stated in Noble, allowing a cause of action by the beneficiaries against
the personal representative’s attorney would place an undue burden on attorney-client
relationship and possibly the legal profession as a whole.
(Slip Op. at 12). As one court stated:
“While the fiduciary in the performance of this service may be
exposed to the potential of malpractice ..., the attorney by
definition represents only one party: the fiduciary. It would be
very dangerous to conclude that the attorney, through
performance of his service to the administrator and by way of
communication to estate beneficiaries, subjects himself to
claims of negligence from the beneficiaries. The beneficiaries
are entitled to even-handed and fair administration by the
fiduciary. They are not owed a duty directly by the fiduciary’s
Goldberg, 266 Cal. Rptr. at 489-90. We therefore conclude that the third-party beneficiary
exception does not apply in the instant case, and thus, the strict privity rule applies.
Turning to the instant case, the beneficiaries need only to have alleged facts that, if
proven, would entitle them to relief in order to survive a motion to dismiss. See Noble
(Slip Op. at 33). If the pleadings do not as a matter of law
allege sufficient facts to entitle a party to the relief sought on the claim, a court may grant
a motion to dismiss for failure to state a claim pursuant to Maryland Rule 2-322(b). Id.
The beneficiaries assert that in the event the third-party beneficiary exception does
not apply Cramer represented the beneficiaries’ direct interests regarding the royalty
payments from Edgewater and Beckett and, thus, an attorney-client relationship existed
between Cramer and the beneficiaries.8 As support, the beneficiaries specifically point to
The beneficiaries also claim that Cramer performed duties that Ms. Eckes as the
personal representative owed directly to the beneficiaries, and thus, Cramer was in privity
with the beneficiaries because he in fact acted as a personal representative for the estate. We
need not address this contention which was raised for the first time in the beneficiaries’ brief
paragraphs 38, 46, and 59 of the complaint. These paragraphs provide:
“38. Subsequent to Decedent’s death Defendant, in
1991, Cramer communicated several times with Edgewater and
was informed by William Dodge, the president of Edgewater,
that Decedent had entered into a series [of] agreements in
1986.... Dodge further indicated to Cramer that the Plaintiffs
were not entitled to royalty payments for Edgewater’s updated
editions of the Decedent’s works of authorship, despite the fact
that the new editions were based on the Decedent’s underlying
works of authorship.
46. In approximately July of 1992 Plaintiffs expressed
their concern in the matter of the Edgewater payments to
Cramer, at which time he indicated to the Plaintiffs that they
were not entitled to further trademark and tradename license fee
and royalty payments as a result of the death of their father,
however, he assured them that no modification, alteration or
amendment had been agreed to pertaining to them and
forwarded to the heirs a proposed letter to Edgewater which
purported to demand further negotiations relative to the
59. Cramer advised Paula Eckes in his capacity as
attorney for the Estate that Beckett had offered $ 25,00.00 in
full settlement of any and all claims the estate might have
against him. He further advised Paula Eckes that the estate was
not entitled to any further split of the royalties received from
House of Collectibles and that the offer of Beckett was a
reasonable one in light of the circumstances and that in the event
of litigation the Estate would be unlikely to prevail.” (Emphasis
in this Court. This issue is not preserved for our review because it was not advanced before
the Court of Special Appeals and was not raised in the beneficiaries’ petition for writ of
We conclude that none of these allegations establishes an attorney-client relationship
between the beneficiaries and Cramer.9 In fact, the complaint itself indicates in several
places that Ms. Eckes was Cramer’s client, repeatedly refers to Cramer as the “attorney for
the Estate,” and specifically states that Ms. Eckes employed Cramer “to represent her in
handling and administering the estate.” The representation agreement attached as an exhibit
to the complaint also indicates that Ms. Eckes was Cramer’s client. Furthermore, although
not determinative, the beneficiaries retained their own counsel with regard to the royalty
payments the beneficiaries expected from Edgewater. We therefore hold that the Court of
Special Appeals did not err in affirming the trial court’s dismissal of the instant case on the
ground that the beneficiaries did not have standing to maintain a cause of action against the
personal representative’s attorney under the strict privity rule.
JUDGMENT OF THE COURT
AFFIRMED. COSTS TO BE
PAID BY PETITIONER.
We note the possibility that the personal representative’s attorney could undertake
an obligation to provide legal services for a beneficiary of the estate despite the potential
conflict of interest. In such a case, a “duty would be created directly in favor of the
beneficiary, an attorney-client relationship would be established, and the beneficiary would
have recourse against the attorney for damages....” Goldberg v. Frye, 266 Cal. Rptr. 483,
489 (Cal. Ct. App. 1990).