He was my lawyer, why can’t I sue him?  Privity, or the direct contractual relationship between attorney and client is the bedrock of the legal malpractice system.  For policy reasons, (we think) this requirement is almost never excused.  The policy is most likely that of avoiding a legal malpractice case after each and every litigation.  If the opposing attorney could be sued easily, it is probable that every case would be followed by a legal malpractice case.

So, in Lewit v Fleishman  2016 NY Slip Op 32335(U)  November 28, 2016 Supreme Court, New York County  Docket Number: 152455/16  Judge: Barbara Jaffe we see how one participant in an estate proceeding that went sour lack the capacity to sue.

“This action arises from a Surrogate Court proceeding involving the probate of the estate and assets of plaintiffs mother and father. In March 2006, plaintiffs father, Robert Lewit, hired attorney Frank Julie to handle his estate and tax issues. After Robert died in 2007, plaintiff was appointed executor of his estate. Plaintiff commenced a proceeding in Queens County Surrogate’s Court, seeking to transfer all of the estate’s non-exempt assets to Robert’s surviving spouse, Mildred Lewit. In March 2007, soon after the decree issued authorizing the transfer to Mildred, she died intestate. Julie was retained to handle the probate of Mildred’s estate.

In November 2009, plaintiff and his siblings were appointed co-administrators of Mildred’s estate. In December 2009, plaintiff filed federal estate tax returns prepared by Julie, which plaintiff alleges, was untimely, thereby resulting in penalties and interest of approximately $170,000. Plaintiff also alleges that Julie failed to disclose that in 2008, the IRS denied his request for an extension of time to file (Id.).

In the fall of 2010, Julie began work on an estate accounting for Mildred’s estate. The accounting and stipulation settling the estate and distributing the assets were completed in early 2011. Plaintiffs siblings refused to agree to the stipulation and accounting, stopped communicating with him, retained counsel, and demanded copies of all relevant financial information. By then Julie had become unresponsive. (Id.).

On or about November 21, 2011, plaintiff, as executor of his father’s estate, hired defendant to perform legal services on behalf of his father’s and mother’s estates; plaintiff signed solely in his capacity as the executor of his father’s estate. (NYSCEF 6). Although plaintiff wanted to commence a malpractice action against Julie, he was unable to do so as the co-administrators of the Mildred’s estate refused to agree. Plaintiff asserts that he asked defendant to prepare a petition to either have the co-administrators removed or obtain permission from the Surrogate to proceed against Julie without the co-administrators’ participation, and that defendant agreed to prepare a removal petition. (NYSCEF 2).

Defendant never filed a petition for removal nor commenced a malpractice action against Julie. After defendant allegedly committed other acts constituting negligence, malpractice, and breach of contract, plaintiff terminated his services in May 2013.”

“An estate has standing to sue for malpractice an attorney hired to represent it. (Estate of Schneider v Finmann, 15 NY3d 306 [2010]; see also Russo v Rozenholc, 130 AD3d 492 [!51 Dept 2015] [estate had standing to sue law firm for malpractice as estate authorized firm to represent its interests under retainer agreement]). However, there is no authority permitting an executor or administrator of an estate to sue in his or her individual capacity where the alleged malpractice harmed the estate or where the attorney was retained by the estate. (See Estate of Schneider, 15 NY3d 306, 308-310 [while personal representative of estate may commence malpractice claim against attorney who allegedly caused harm to estate, he does so as representative of estate and not individually; “strict privity remains a bar against beneficiaries’ and other third-party individuals’ estate planning malpractice claims absent fraud or other circumstances.”]; 21A Carmody-Wait 2d § 129:87 [2016] [personal representative of estate has standing to sue, on behalf of estate, attorney for malpractice]). As the alleged malpractice was committed against the estate and not plaintiff in his individual capacity, and as the malpractice claim thus belonged to the estate and not plaintiff as an individual, he has no right or claim to damages resulting from the malpractice, and thus may not sue defendant here on his own behalf. (Compare Brown-Jodoin v Pirrotti, 138 AD3d 661 [2d Dept 2016] [plaintiff had standing to sue law firm for malpractice based on its alleged failure to properly probate her father’s will and finalize estate; evidence reflected that plaintiff as individual signed retainer agreement and paid retainer individually and that attorney had not billed her in her representative capacity, and plaintiff alleged that she had been personally harmed by defendants’ malpractice]; Newbach v Giaimo & Vreeburg, 209 AD2d 222 [!51 Dept 1994] [plaintiffs had viable claim for legal malpractice in capacity as representatives of decedent’s estate]). ”