It is unusual, and definitely an exception to the requirement of privity of contract between a client and the attorney in order to make a good legal malpractice claim, but such claims can be made in the absence of privity where fraud, collusion, malice or other special circumstances are alleged. Hager v Inner Circle Logistics, Inc.,
2023 NY Slip Op 33395(U), September 28, 2023, Supreme Court, Kings County
Docket Number: Index No. 525941/2022, Judge: Reginald A. Boddie gives the background.

” The initial complaint alleged six causes of action, breach of contract against ICL, money had and received against ICL, unjust enrichment against ICL, fraudulent inducement against ICL, permanent injunction against Riverside and declaratory judgment against all defendants. Plaintiff now seeks to amend the complaint to include a claim against Philips Nizer, a law firm involved in the transaction, and its attorneys Landis and Rosenberg. Plaintiff also sought to add additional claims against the SDC Defendants. However, subsequent to the filing of the motion, those claims were resolved and consequently withdrawn. Therefore, the court need only address the remaining relief sought, wherein plaintiff seeks to amend the complaint to add malpractice and tort claims against Philips Nizer, Landis and Rosenberg and make additional edits.”

“Here, defendants argue, “a threshold inquiry in a legal malpractice claim is whether an
attorney-client relationship exists. An attorney may be liable for malpractice to a third party only if there is “near privity” with the third-party. Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties not in privity or near-privity for harm caused by professional negligence. As defendants aptly acknowledges, citing Gifford v Harley, 62 AD2d 5 [3d Dept 1978], an attorney may be held liable to third parties if he or she has been “guilty of fraud or collusion or of a malicious or tortious act.”

Plaintiff also agrees and argues, “[ w ]hile privity of contract is generally necessary to state a cause of action for attorney malpractice, liability is extended to third parties, not in privity, for harm caused by professional negligence in the presence of fraud, collusion, malicious acts or other special circumstances,” citing Ginsburg Dev. Cos. v Carbone, 85 AD3d 1110, 1111 [2d Dept 2011]. Further, plaintiff asserts the subject firm and attorneys were aware of the terms of the money deposit and loan and intentionally evaded their obligations, causing plaintiff to suffer damages. Therefore, the court finds neither the malpractice nor prima facie tort claims palpably improper or devoid of merit at this juncture. Moreover, the additional edits in the proposed amended complaint do not appear to be improper. Accordingly, the motion is granted in its entirety.”