Fickett v. Superior Court

In Fickett v. Superior Court, 27 Ariz. App. 793, 558 P.2d 988 (1976), the conservator of an incompetent person's estate sued the attorney for the former guardian, alleging that the attorney had negligently failed to discover the guardian's scheme to misappropriate and convert estate assets for his personal benefit. The conservator claimed that the attorney had owed a duty to the ward despite a lack of privity between the ward and the attorney. In analyzing the conservator's claim, this court restated the general rule that an attorney is not liable for legal malpractice to parties other than the attorney's client absent collusion or fraud. Fickett; see also Restatement (Third) of the Law Governing Lawyers 51 cmt. a (2000) (lawyer owes duty of care to nonclient only in "limited circumstances"). But, in Fickett, we created an exception to the general rule, concluding that the attorney had owed a duty to the ward and was liable for breach of that duty. The Court reached that conclusion after applying the following balancing test: The determination of whether, in a specific case, the attorney will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are: [1] the extent to which the transaction was intended to affect the plaintiff; [2] the foreseeability of harm to him; [3] the degree of certainty that the plaintiff suffered injury; [4] the closeness of the connection between the defendant's conduct and the injuries suffered; [5] the moral blame attached to the defendant's conduct; [6] the policy of preventing future harm. 27 Ariz. App. at 795, 558 P.2d at 990. The Court concluded that, "when an attorney undertakes to represent the guardian of an incompetent [person], he assumes a relationship not only with the guardian but also with the ward." Id.