In Flores v. Branscomb PC, before her death, the decedent hired counsel to prepare a new will. No. 13-18-00411-CV, 2021 Tex. App. LEXIS 4612 (Tex. App.—Corpus Christi June 10, 2021, no pet. history). The new will would have named the decedent’s granddaughter as her executor and as a beneficiary. The decedent died before signing the new will, and the granddaughter sued the decedent’s attorneys for malpractice. The attorneys filed a motion for summary judgment, arguing that they owed no duty to the granddaughter. The trial court granted the summary judgment, and the granddaughter appealed. The court first discussed the estate planning privity rule:

Legal malpractice claims sound in tort. To establish such a claim, a plaintiff must prove: (1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff’s injuries; and (4) damages occurred. Id. While an attorney owes a duty of care to a client, no such duty is owed to non-clients, even if they are damaged by the attorney’s malpractice. The existence of duty is a question of law when all of the essential facts are undisputed.

In Barcelo v. Elliott, the Texas Supreme Court declined to create an exception to the attorney duty limitation in the estate planning context. 923 S.W.2d 575, 579 (Tex. 1996). Specifically, the court held that an attorney retained by a testator to draft a will owes no professional duty of care to persons named as beneficiaries under the will. Id. The court reasoned that the threat of lawsuits by disappointed heirs after a client’s death could create conflicts during the estate planning process and divide the attorney’s loyalty between the client and potential beneficiaries. Id. at 578. In reaching its holding, the court contemplated a scenario similar to the present case:

In most cases where a defect renders a will or trust invalid, however, there are concomitant questions as to the true intentions of the testator. Suppose, for example, that a properly drafted will is simply not executed at the time of the testator’s death. The document may express the testator’s true intentions, lacking signatures solely because of the attorney’s negligent delay. On the other hand, the testator may have postponed execution because of second thoughts regarding the distribution scheme. In the latter situation, the attorney’s representation of the testator will likely be affected if he or she knows that the existence of an unexecuted will may create malpractice liability if the testator unexpectedly dies.

. . . .

In sum, we are unable to craft a bright-line rule that allows a lawsuit to proceed where alleged malpractice causes a will or trust to fail in a manner that casts no real doubt on the testator’s intentions, while prohibiting actions in other situations. We believe the greater good is served by preserving a bright-line privity rule which denies a cause of action to all beneficiaries whom the attorney did not represent. This will ensure that attorneys may in all cases zealously represent their clients without the threat of suit from third parties compromising that representation.

Id. at 578-79 (emphasis added).

Since Barcelo, the Texas Supreme Court has recognized two scenarios in which a non-client can bring a legal malpractice claim against an estate planning attorney. First, an estate representative may bring a legal malpractice action for damage to the estate. Second, an executor of a will may bring suit for malpractice committed by a decedent’s attorney outside of the estate-planning context. Neither scenario concerns Flores’s claims in this case.

Id.

The granddaughter argued that the estate planning privity rule did not apply, because an implied attorney-client relationship existed between her and the attorneys. The court acknowledged that there were implied attorney/client relationships, and held that “[t]o support an implied attorney-client relationship, there must be evidence that both parties intended to create the relationship.” Id. The court held that there was no evidence that the law firm ever manifested an intent to provide legal services to the granddaughter or that they reasonably should have known that she was relying on them in that regard. The court held that the granddaughter’s subjective belief that the law firm represented her was insufficient to establish an implied attorney-client relationship. The court affirmed the judgment for the law firm.