Metzker v. Slocum

• Decision Date: 19 June 1975
• Citation: 272 Or. 313,537 P.2d 74
• Parties: Debra Jo METZKER, by Velma Metzker, her guardian ad litem, Appellant, v. Randolph SLOCUM, Respondent.
• Court: Oregon Supreme Court

Page 74

537 P.2d 74

272 Or. 313

Debra Jo METZKER, by Velma Metzker, her guardian ad litem, Appellant, v. Randolph SLOCUM, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 4, 1975.

Decided June 19, 1975.

Gregory G. Foote, Eugene, argued the cause for appellant. With him on the briefs were Gary K. Jensen and Dwyer & Jensen, P.C., Eugene.

Jack L. Mattison, Eugene, argued the cause for respondent. With him on the brief were John E. Jaqua and Jaqua & Wheatley, Eugene.

HOLMAN, Justice.

Plaintiff, a minor child, brought this negligence action for damaes for legal malpractice through her guardian ad litem. Plaintiff appeals from an order of dismissal after refusing to plead further when a demurrer was sustained to her complaint.

In substance, plaintiff's complaint alleges that defendant was retained by Velma and William Metzker, then husband and wife, to perfect an adoption of plaintiff. Defendant thereafter negligently failed to perfect the adoption, unbeknown to the Metzkers. Approximately ten years later Velma and William Metzker were legally separated but, because no adoption had taken place, the divorce court made no provision for the support of plaintiff. Defendant filed a demurrer to plaintiff's complaint, stating that it did not allege sufficient facts to constitute a cause of action. The asserted basis at the trial court level for the demurrer was that under Oregon law an action for malpractice may be maintained only by the client and not by an injured third party who has no privity of contract with the negligent lawyer. The trial judge, apparently, sustained the demurrer on that basis.

Defendant is correct about the present state of the Oregon law. An issue in the case of Currey v. Butcher, 37 Or. 380, 61 P. 631 (1900) was whether an attorney who was hired by a husband to approve the title to a piece of real property being purchased by his wife knew that he was being retained by the wife through the husband as her agent. The attorney negligently approved the title which proved to be faulty, and the wife brought an action against him for her resultant damage. This court held the wife had no cause of action if the lawyer did not know he was representing her instead of her husband, because an attorney-client relationship is consensual and, in the absence of the lawyer's consent to represent her, the wife had no privity of contract with the defendant. The court said:

'* * * Unless, therefore, the relation of attorney and client existed between the plaintiff and the defendants, she cannot maintain an action against them for negligence in examining the title for another; * * *.' 37 Or. at 390, 61 P. at 635.

The opinion is based upon the well-known cases of Savings Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621 (1879), Dundee Mortgage & Trust Investment Co. v. Hughes, 20 F. 39 (CCD Or.1884), and Buckley v. Gray, 110 Cal. 339, 42 P. 900, 52 Am.St.R. 88, 31 LRA 862 (1895), which cases were, in turn, based upon the English case of Winterbottom v. Wright, 152 Eng.Rep. 402 (Ex.1842). Plaintiff contends these cases should not be followed because the modern trend is to the contrary and argues that privity is not a prerequisite to maintaining a tort action for damaes for legal malpractice.

The vast predominance of adjudicated cases in the United States is in accordance with Currey v. Butcher, Supra. See cases collected in Annotation, 'Attorney's Liability, to One Other than His Immediate Client, for Consequences of Negligence in Carrying out Legal Duties,' 45 ALR3d 1181, 1187 (1972). However, some of the more modern cases indicate that privity of contract is not a prerequisite. Heyer v. Flaig, 70 Cal.2d 223, 74 Cal.Rptr. 225, 449 P.2d 161 (1969); Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 ALR2d 1358 (1958); Donald v. Garry, 19 Cal.App.3d 769, 97 Cal.Rptr. 191, 45 ALR3d 1177 (1971); Costello v. Wells Fargo Bank, 258 Cal.App.2d 90, 65 Cal.Rptr. 612 (1968); Haldane v. Freedman, 204 Cal.App.2d 475, 22 Cal.Rptr. 445 (1962); Licata v. Spector, 26 Conn.Supp. 378, 225 A.2d 28 (1966). Each case involved one of the following:

1. An action by the beneficiary of a will who has lost his devise or bequest because the attorney drawing the will did so inartfully or caused it to be improperly executed;

2. An action by a purchaser of real property against the seller's lawyer who negligently approves a faulty title in a situation where the seller is obligated to furnish an approved title and the purchaser relies upon such approval; and

3. An action by a creditor, who has placed an account with a collection agency, against the agency's lawyer who negligently failed to pursue court proceedings resulting in the creditor's loss.

The cases dispensing with privity usually hold that a determination whether, in a specific case, the defendant will be held liable in negligence for non-physical damage to a third person not in...