The attorney-client relationship is the cornerstone of legal ethics. This relationship imposes well-defined duties including competence, diligence, confidentiality, and loyalty. However, the boundaries of a lawyer’s obligations do not always necessarily end with the client. The profession sees lawyers routinely interacting with third parties, beneficiaries, opposing parties, and others not formally retained as clients. Under these circumstances, the question may arise: what duties, if any, do lawyers owe to non-clients?
This article examines the issue by discussing the ethical obligations that lawyers may owe to non-clients and the circumstances under which attorneys may be liable to a non-client for legal malpractice. It considers the American Bar Association’s Model Rules of Professional Conduct (“MRPCs”), the prevailing case law in New Jersey, and the policy considerations that courts use in expanding—or limiting—the duty of care beyond the traditional client.
Professional Responsibility and Non-Clients
While the MRPCs are primarily designed to govern the attorney-client relationship, several rules prevail upon lawyers to recognize that their conduct toward non-clients is subject to ethical scrutiny. For example, lawyers are required to be truthful when dealing with third parties on behalf of a client. But see MRPC 4.1, cmt. [1] (providing that a lawyer “generally has no affirmative duty to inform an opposing party of relevant facts”). Under MRPC 4.1(a), “[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person." Such a rule imposes an obligation to treat third parties in an honest manner, even in the case of an adversarial setting. While the lawyer’s primary duty is to the client, this provision makes clear that professional ethics prohibit the deception of non-clients.
Similarly, MRPC 4.3 addresses situations in which a lawyer deals with an unrepresented person while advancing the interests of his or her client. The Rule explains that under such circumstances a lawyer must not imply that they are disinterested. An unrepresented person, particularly one not experienced in dealing with legal matters, “might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client.” MRPC 4.3, cmt. [1]. In order to avoid any misunderstanding, a lawyer should identify the lawyer’s client from the outset and, “where necessary, explain that the client has interests opposed to those of the unrepresented person.” Id. Furthermore, if the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role, the lawyer must make reasonable efforts to correct that misunderstanding. Taken together, these rules reflect the ethical obligations to prevent confusion or unintended reliance by non-clients during legal interactions.
Liability to Non-Clients for Legal Malpractice
While the MRPCs delineate professional responsibilities, legal malpractice suits typically derive from the tort of negligence and hinge on a duty of care. The existence of an attorney-client relationship creating a duty is “essential to the assertion of a cause of action for legal malpractice.” Froom v. Perel, 377 N.J. Super. 298, 310 (App. Div. 2005). Traditionally, this duty has been confined to the client. Liability has been extended in certain limited circumstances though, where a lawyer may owe a duty to non-clients, depending on the jurisdiction and factual circumstances.
In New Jersey, “the invitation to rely and reliance are the linchpins of attorney liability to third parties.” Banco Popular N. Am. v. Gandi, 184 N.J. 161, 181 (2005). By way of example, courts have permitted an extension of the duty in circumstances where a non-client relies upon an adversarial attorney to record a mortgage; where a non-client tenant relies upon the representations of a landlord’s attorney in agreeing to a long-term lease; or where an attorney included inaccurate information in a public offering statement intended to be relied upon by the public. In each of these instances, courts found that there was both the invitation to rely and actual reliance.
If an attorney’s actions “are intended to induce a specific non-client’s reasonable reliance on his or her representations, then there is a relationship between the attorney and the third party.” Banco Popular N. Am., 184 N.J. at 180. In such situations, “attorneys may owe a duty of care to non-clients when the attorneys know, or should know, that non-clients will rely on the attorneys' representations and the non-clients are not too remote from the attorneys to be entitled to protection.” Petrillo v. Bachenberg, 139 N.J. 472, 483 (1995).
There are additional circumstances permitting a determination that an attorney owes a duty to a non-client that is not dependent on the non-client’s reliance on the attorney's actions. For example, privity between an attorney and a non-client may not be necessary for a duty to attach where the attorney had reason to foresee the specific harm that occurred. In one case, a court recognized that an attorney who drafts a testamentary document that is inconsistent with the decedent's intent breaches a legal duty owed to a beneficiary who claims they are damaged as a result of the attorney's error. An additional source of authoritative support for such a duty to attach can be found in the Restatement (Third) of the Law Governing Lawyers § 51(3)(a), which provides that a lawyer owes a duty of care to a non-client when the lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer's services benefit the non-client.
The Bottom Line
Lawyers must be cognizant of their ethical and legal duties, not only to clients, but under certain circumstances, to non-clients as well. While the MRPCs impose clear obligations when dealing with third parties, liability for malpractice to non-clients remains a nuanced area of law that may vary by jurisdiction. Attorneys should remain vigilant in understanding where their obligations begin and end. Through thoughtful client intake procedures, clear engagement terms, and adherence to professional standards, lawyers can fulfill their ethical duties while mitigating the risk of unexpected liability to those outside the formal attorney-client relationship.
Reprinted with permission from the October 24, 2025 edition of The Legal Intelligencer © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com.