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WPI 107.02 Duty to Non-Client

6 WAPRAC WPI 107.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 107.02 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part IX. Particularized Standards of Conduct
Chapter 107. Legal Malpractice
WPI 107.02 Duty to Non-Client
(Name of non-client)has the burden of proving that(name of defendant)'s representation of(name of client)was intended to benefit(name of non-client).
In deciding whether this burden has been met, you are to consider whether the following [fact has] [facts have] been proved:
(Insert here the factual issues underlying the Trask test that the jury needs to resolve; see the Note on Use and Comment.)
You have been given a special verdict form that asks you whether [this fact has] [these facts have] been proved. Fill in the special verdict form according to your answer. Follow the directions on the special verdict form for what to do next.
This instruction rarely will be needed. Whether a duty is owed to a non-client depends on the judge's weighing of the Trask factors. Usually, this decision is made as a matter of law during pre-trial motions. The pattern instruction would be used only if factual issues have precluded the judge from deciding the issue as a matter of law.
For the reasons given in the Comment, the instruction should not list the six Trask factors, but should instead set forth the specific factual disputes underlying those factors.
Depending on the nature and complexity of the underlying factual dispute, the judge will need to consider the best way in which to integrate the jury's factual findings with the rest of the jury's deliberations. If, for example, the Trask analysis turns on a single disputed fact, the judge may use the accompanying special verdict form (WPI 107.03) to instruct the jurors how they are to proceed with the rest of their deliberations depending on their resolution of the single factual issue. For more complicated factual disputes, other approaches may be needed. For further discussion, see the Comment below, and the Note on Use and Comment for WPI 107.03 (Duty to Non-Client—Special Verdict Form).
Trask test for non-client standing. As a general rule, only a client has standing to sue his or her lawyer for malpractice. An exception, however, allows for third party standing under a six-factor balancing test to determine whether a lawyer owes a duty to a non-client. Trask v. Butler, 123 Wn.2d 835, 841, 872 P.2d 1080 (1994); Cummings v. Guardianship Servs. of Seattle, 128 Wn.App. 742, 756–57, 110 P.3d 796 (2005); In re Karan, 110 Wn.App. 76, 81–87, 38 P.3d 396 (2002). The six factors are:
  • (1) the extent to which the [lawyer's representation of the client] was intended to affect the plaintiff;
  • (2) the foreseeability of harm to the plaintiff;
  • (3) the degree of certainty that the plaintiff [would suffer] injury;
  • (4) the closeness of the connection between the defendant's conduct and the injury;
  • (5) the policy of preventing future harm; and
  • (6) the extent to which the [legal] profession would be unduly burdened by a finding of liability.
Trask v. Butler, 123 Wn.2d at 842–43. See also Stewart Title Guaranty Co. v. Sterling Savings Bank, 178 Wn.2d 561, 570, 311 P.3d 1, 5 (2013) (“[A] nonclient may not pursue a claim of malpractice against another's attorney unless the nonclient shows, as a threshold matter, that the attorney's representation was to some extent intended to benefit the nonclient.”)
Trask test—Questions of law and fact. The six Trask factors should not be listed in a jury instruction, because some of the factors involve policy questions that a judge, not the jury, needs to resolve. Accordingly, the trial court usually decides standing under Trask as a matter of law before trial. See, e.g., Trask v. Butler, 123 Wn.2d 835, 841, 872 P.2d 1080 (1994) (decided on summary judgment); Cummings v. Guardianship Servs. of Seattle, 128 Wn.App. 742, 756–57, 110 P.3d 796 (2005) (decided on summary judgment); Hetzel v. Parks, 93 Wn.App. 929, 936, 971 P.2d 115 (1999) (decided under CR 12(b)(6)). If there is a dispute of material fact regarding a factor, then the court needs to draft a jury instruction to resolve the factual issue at trial.
Integrating this instruction with other instructions. In some cases, it might be difficult to incorporate this instruction into the other malpractice instructions. Most of the difficulty arises from the timing of the different decisions that need to be made. The jury needs to resolve the factual dispute related to the Trask factors. The judge then needs to use the jury's decisions to complete the balancing of the Trask factors. If the Trask analysis allows the non-client to maintain the cause of action, then the judge needs to instruct the jury as to the elements for the cause of action. This sequence of decision-making, however, would require an interruption in the jury's deliberation process.
The judge may be able to streamline the decision-making process in cases involving a single key disputed fact, by using the accompanying special verdict form, WPI 107.03 (Duty to Non-Client—Special Verdict Form). The special verdict form asks the jurors a single yes/no question about the disputed fact, and then directs jurors that a “yes” answer means that they continue to deliberate on the merits of the non-client's claim against the attorney, and a “no” answer means that they are not to consider anything further on that claim. Potentially this same approach could also be used if there were a set of related facts that could be fit into a single yes/no question of this type. If the factual dispute does not easily fit into this type of question, then another approach will be needed.
[Current as of September 2018.]
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