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Leyba v. Whitley6/30/1994
Imposition of that liability, as explained above, would require the lawyer to undertake additional responsibilities in overseeing the conduct of the client-trustee. Similarly, imposition of liability to the "third-party beneficiary" in the above cases does not strain the lawyer-client relationship by requiring the lawyer to do anything that would detract from the relationship of trust and confidence between lawyer and client.
To be sure, recognition of such claims by non-clients may have some economic impact on the lawyer-client relationship. The cost of drafting a will may increase if malpractice premiums rise because of potential liability of lawyers to testamentary beneficiaries. Nevertheless, it is unlikely that the client would object to this additional charge because imposition of liability both encourages due care by the lawyer in performing duties owed to the client and provides a back-up source for the third party to receive the bounty intended by the testator.
In applying this case law to the present appeal, we are influenced by Professor Melvin Eisenberg's analysis of the contract law of third-party beneficiaries. See Melvin A. Eisenberg, Third-Party Beneficiaries, 92 Colum. L. Rev. 1358 (1992) [hereinafter Eisenberg]. Eisenberg critiques the intent-to-benefit test generally adopted for determining whether one can recover as a third-party beneficiary to a contract. He points out that it would be contrary to normal principles of contract interpretation to look to the subjective intent of the promisee, see id. at 1381, yet if the test is objective, "how is it to be determined . . . why in some contracts whose performance will benefit a third party, the benefit is objectively 'intended' within the meaning of the test, while in other contracts whose performance will benefit a third party, the benefit if not so 'intended'?" Id. at 1379.
Eisenberg avoids the difficulty by adopting that he terms the "third-party-beneficiary principle," which can account for the holdings in the great bulk of modern cases. One branch of the principle, the branch important for our purposes, permits the third-party beneficiary to enforce a contract if "allowing the beneficiary to enforce the contract is a necessary or important means of effectuating the contracting parties' performance objectives, as manifested in the contract read in the light of surrounding circumstances[.]" Id. at 1385.
This branch of the third-party-beneficiary principle nicely explains the cases involving lawyer malpractice by revealing that the heart of the matter is the law of remedies, not the law of substantive duties. As Eisenberg writes:
Under the first branch of the third-party-beneficiary principle, the law of third-party beneficiaries is largely conceived as remedial, rather than substantive. The question addressed by the first branch of the principle is not whether the contract creates a "right" in the third party, but whether empowering the third party to enforce the contract is a necessary or important means of effectuating the contracting parties' performance objectives.
Id. at 1386. When a lawyer is liable to a non-client under the principle, it necessarily follows that (1) imposing liability does not expand the lawyer's duties to perform beyond those already required by the lawyer-client relationship and (2) imposition of liability should encourage proper performance by the lawyer of the duties owed the client. Eisenberg devotes a few paragraphs to explain how his principle supports the results in the "Would-Be Legatees" cases. Id. at 1393-96.
One virtue of Eisenberg's approach for our purposes if that it provides a useful starting point for determining the
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