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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 12-CV-1474

                         NIGEL L. SCOTT, et al., APPELLANTS,

                                          V.

                             JANICE BURGIN, APPELLEE.

                           Appeal from the Superior Court
                            of the District of Columbia
                                  (CAM-8295-09)

                        (Hon. Gregory E. Jackson, Trial Judge)

(Argued November 22, 2013                               Decided August 14, 2014)

      Donald M. Temple for appellants.

      Kenneth H. Rosenau, with whom Kimberly K. Fahrenholz was on the brief,
for appellee.

      Before GLICKMAN and FISHER, Associate Judges, and STEADMAN, Senior
Judge.

      STEADMAN, Senior Judge: Appellants Nigel L. Scott and the Yallery and

Scott Law Firm (collectively, “Scott”) appeal from a jury malpractice award in

favor of appellee Janice Burgin, who was not a client of the firm. We hold that, as

a matter of law, appellants’ duty of care did not extend to Burgin and, accordingly,

reverse the judgment.
                                        2

                            I. Factual Background



       Kenneth Woodruff (“Woodruff” or the “decedent”) was married to, but

separated from, Patricia Woodruff when he met Burgin in 1983. He proposed to

her in that year and again in 1996. In 1986 Burgin moved in with Woodruff, and

they carried on a long-standing close relationship. In January 2006, Burgin had a

meeting with Scott in which she asked if Scott would help Woodruff obtain a

divorce. Scott’s brief handwritten jottings from the meeting contain the notation

“(Pension?)”. Scott told Burgin that he would help Woodruff obtain a divorce if

Woodruff chose to retain him. Woodruff did not attend the meeting because he

was in failing health with terminal bone cancer. In her complaint, Burgin asserts:

“Woodruff wished to obtain a divorce so that he may marry Plaintiff. Although he

had previously designated Plaintiff as the beneficiary of his federal benefits, he

was aware that Plaintiff may not receive them unless their union was made

official.”



       Woodruff did not meet with Scott until one year later in January 2007.

Burgin escorted Woodruff to the meeting, and she filled out a divorce

questionnaire on his behalf while Woodruff and Scott spoke alone.         Shortly

thereafter, Woodruff signed a retainer agreement for Scott’s representation in his
                                          3

“Divorce Proceedings.”     Burgin later contacted Scott on six occasions to ask

whether the complaint had been served on Patricia Woodruff. Scott did not serve

Patricia Woodruff with the complaint until November 2007. Woodruff died in

April 2008, and a divorce was never secured prior to his death.



      Woodruff had been employed by the United States Postal Service. His

retirement benefits were administered by the Civil Service Retirement System. On

a “Designation of Beneficiary” form dated January 15, 2007, Woodruff designated

Burgin as his beneficiary for any lump-sum payout of his retirement benefits,

indicating that Burgin was his “fiancée.”1 Woodruff also designated Burgin as his

beneficiary for his Federal Employees’ Group Life Insurance on a form dated

December 21, 2007. After Woodruff’s death, Burgin filed a claim with United

States Office of Personnel Management (“OPM”) for Woodruff’s “survivor

benefits.” OPM denied Burgin’s claim for survivor benefits on May 4, 2009,
      1
          The form specifically states: “I understand that this designation of
beneficiary will not affect the rights of any survivors who may qualify for annuity
benefits after my death.” As we understand it, the survivor annuity benefits that
Burgin seeks are dependent upon marriage. See 5 U.S.C. § 8341. The May 4,
2009, letter denying Burgin’s claim is not proof to the contrary but instead, read as
a whole, appears to reflect the marriage requirement. In any event, as Scott argues,
Burgin has failed to meet her evidentiary burden of showing that, without more,
she would automatically have been entitled to the claimed survivor annuity
benefits under the provisions of the retirement system if the divorce had been
perfected prior to Woodruff’s death.
                                           4

“based on evidence provided by another claimant showing that an earlier marriage

between the claimant and the deceased was never terminated.”



      Burgin subsequently brought this suit against Scott for legal malpractice and

the related breach of contract as a third-party beneficiary. The jury awarded her

damages of $249,600, the amount she assertedly would have received had she been

the survivor annuity beneficiary of his pension, plus $5,000 for malpractice

damages and $275 in punitive damages. At this point, Scott no longer contests that

Woodruff’s divorce action was handled negligently. Instead, Scott argues that

Burgin lacked standing to sue for malpractice or breach of contract.



                                 II. Legal Analysis



      As an initial matter, Burgin never argued at trial, and does not argue in her

brief on appeal, that she was Scott’s client. To the contrary, she testified at trial

that her understanding was that Woodruff alone was the client. 2 Therefore, if she

is to prevail, she must fall within the ambit of Scott’s duty of care.3

      2
         At oral argument, appellant suggested that since Scott knew that the
primary reason for the divorce was to enable Burgin to secure survivor benefits in
Scott’s pension, that fact alone was enough to make Burgin a client. Such an
                                                                    (continued…)
                                            5

      In this jurisdiction, whether a plaintiff falls into the class of persons who

may sue an attorney for malpractice has been resolved as “a matter of law.”

Hopkins v. Akins, 637 A.2d 424, 428 (D.C. 1993) (beneficiaries of an estate may

not sue attorney for estate’s personal representative); Needham v. Hamilton, 459

A.2d 1060 (D.C. 1983) (intended beneficiaries of estate may sue attorney who

drafted the decedent’s will).4 “It is well established that ‘the general rule is that the


 (…continued)
argument, made for the first time at oral argument, comes far too late. See, e.g.,
Bliss v. Bliss, 733 A.2d 954, 960 n.13 (D.C. 1999) (court normally will not
consider arguments raised for first time at oral argument); D.D. v. M.T., 550 A.2d
37, 48 (D.C. 1988) (parties may not assert one theory at trial and another theory on
appeal).
      3
         We do not think, at least in the circumstances of this case, any meaningful
distinction exists between an analysis of a duty of care as a tort concept and of a
third-party beneficiary as a contract concept. While Scott may well have known
why Woodruff wanted to obtain a divorce and the jury was instructed on third-
party beneficiary law, there is no real evidence here that Scott himself intended to
incur any liability beyond that imposed by law as part of his duty of care. Both
contracting parties must intend a direct benefit which the third party can enforce
against the promisor for classic third-party liability. See Fort Lincoln Civil Ass’n
v. Fort Lincoln New Town Corp., 944 A.2d 1055, 1064 (D.C. 2008). The reference
to “(Pension)?” in Scott’s notes from the initial meeting with Burgin was plainly
inadequate.
      4
          In our previous cases we have variously described this issue as a question
of the plaintiff’s “standing” to bring the claim, see Teasdale v. Allen, 520 A.2d
295, 296 (D.C. 1987), a question of whether the right of action is “available” to the
plaintiff, see Needham, 459 A.2d at 1063, or a question of whether, as a matter of
law, the attorney owed a duty to the plaintiff, see Hopkins, 637 A.2d at 428.
Resolution of the specific terminology applicable is not required in this opinion.
                                                                      (continued…)
                                           6

obligation of the attorney is to his client, and not to a third party . . . .’” Needham,

459 A.2d at 1061 (quoting National Savings Bank v. Ward, 100 U.S. 195, 200

(1880)). However, “[t]he rule requiring privity is not . . . without exception.” Id.

at 1062. We may allow legal malpractice suits by “third parties notwithstanding a

lack of privity where the impact upon the third party is ‘not an indirect or collateral

consequence,’ but the ‘end and aim of the transaction.’” Id. (quoting Glanzer v.

Shepard, 135 N.E. 275, 275 (N.Y. 1922) (Cardozo, J.)). Otherwise put, third party

claims may be sustained where the plaintiffs were “the direct and intended

beneficiaries of the contracted for services.” Id.



      The classic situation that meets these criteria is the failure of an attorney to

properly draft a will. Comparing the case before us with that of a negligently

omitted beneficiary demonstrates why we must reject Burgin’s claim. “‘[T]he

main purpose of a contract for the drafting of a will is to accomplish the future

transfer of the estate of the testator to the beneficiaries named in the will . . . .’”

Needham, 459 A.2d at 1063 (quoting Lucas v. Hamm, 364 P.2d 685, 688 (Cal.

1961)). In such a situation, the duty of care runs to the intended legatee as a


(…continued)
No matter how Scott’s appellate argument is characterized, as a matter of law,
Burgin may not recover from him.
                                              7

“direct   and       intended”   beneficiary       of   the   attorney-client   relationship.

Id. A properly drafted and executed will provides beneficiaries with legally

enforceable rights upon the testator’s death. A divorce decree, on the other hand,

does not provide the same “direct” benefit to the fiancée of a divorcing client. The

divorce does not, of its own force, redistribute the client’s assets to the fiancée, nor

does it affect a change in the fiancée’s legal status. Rather, the “end and aim” of a

divorce proceeding is the dissolution of a marriage and the distribution of marital

assets.   See generally D.C. Code §§ 16-910 (assignment of property), -913

(alimony), -914 (custody of children), -920 (a decree of absolute divorce “shall

become effective to dissolve the bonds of matrimony 30 days after the docketing of

the decree”). The only parties directly concerned with a divorce proceeding are the

married couple and their minor offspring. A fiancée of either party is a complete

stranger to the transaction, legally speaking, and the divorce itself does nothing to

change that status. Rather, the newly divorced person must take at least one

further positive and completely distinct step to achieve what Burgin is seeking here

and on which she bases her claim of damages; namely, entering into the new

marriage itself.5

      5
         In similar cases, courts from other jurisdictions have declined to extend
attorneys’ liability to third parties like children who are potentially impacted by
divorce proceedings. See In re Estate of Drwenski, 83 P.3d 457, 465-66 (Wyo.
                                                                       (continued…)
                                          8

      We further note that permitting malpractice suits in this situation would

undermine the “the rationales supporting the requirement of privity” identified in

Needham, 459 A.2d at 1062. The basic theory pursued by Burgin in this case was

that Scott’s failure to obtain the divorce prevented her from receiving funds the

decedent intended her to have. “With little imagination (and subject only to the

demands of ethical pleading),” a similar argument could be advanced by any

hypothetical frustrated creditor whose debtor would be enriched but for a bungled

divorce. Hopkins, 637 A.2d at 430. The fact that only Burgin had such a claim in

this case cannot be “the basis” for “a principled exception to the privity

requirement.” Id. at 429. Accordingly, permitting Burgin’s suit in this case would

frustrate one of the primary goals of the privity rule: “avoiding exposure of the


 (…continued)
2004) (finding that daughter was not a third-party beneficiary of a contract
between attorney and father to pursue divorce despite father’s death before the
divorce was procured, resulting in father’s widow inheriting money the daughter
would have inherited had the divorce been finalized); Pelham v. Griesheimer, 440
N.E.2d 96, 99-101 (Ill. 1982) (finding that attorney hired to secure divorce owed
no duty of care to children of client as third-party beneficiaries, where children
claimed that attorney’s negligence resulted in children not being able to benefit
from divorce decree); Strait v. Kennedy, 13 P.3d 671, 676-77 (Wash. App. 2000)
(holding that children had no standing as third-party beneficiaries to bring
malpractice claim against mother’s divorce attorney claiming that attorney failed to
timely finalize client’s divorce prior to her death, thereby causing children to lose
portions of their inheritance); Wilson-Cunningham v. Meyer, 820 P.2d 725, 730-31
(Kan. Ct. App. 1991) (holding that attorneys owe no legal duty to divorcing
parties’ adult children).
                                           9

attorney ‘to a liability in an indeterminate amount . . . to an indeterminate class.’”

Id. (quoting Needham, 459 A.2d at 1062). Extending permission to sue an attorney

for malpractice to those who would indirectly benefit from the dissolution of a

client’s marriage introduces precisely this risk of unforeseen and unmanageable

liability.



       These concerns also demonstrate why permitting this suit would undermine

the other objective of the privity rule: protecting the ability of the attorney and the

client to exercise “control over the contractual agreement.” Needham, 459 A.2d at

1062. “Implicit in the concern underlying the privity concept that attorney and

client be able to control . . . their own agreement is an attorney’s difficulty in

perceiving the consequences of a duty to a third person so that these can be

considered and declined if the conflicts or financial exposure is too great.”

Hopkins, 637 A.2d at 429 (internal quotation marks and brackets omitted). In the

case of beneficiaries under a will, the aims and purposes of the testator and

beneficiaries are identical. In the divorce context, a number of questions and

decisions may arise with respect, for example, to the settlement of disputes over

property division, the payment of alimony, or other matters relating to the
                                           10

termination of the marital state.6 In such a context, it is not difficult to envision

situations where the interests of the client seeking the divorce and his fiancée

waiting in the wings could come into conflict, which argues against any dilution of

the attorney’s obligation to serve the interests of his or her client alone.



      For all these reasons, we hold that Burgin’s suit against Scott must fail.

Accordingly, the judgment is




                                         Reversed.




      6
          Indeed, in this very case, rights to the pension with its survivor benefits
may very well have been the subject of controversy on which Woodruff might
have been persuaded to yield to the disadvantage of Burgin. We do not address on
this appeal appellants’ challenge to the computation of damages. But we note that
the jury awarded damages on the assumption that control over the survivor benefits
would remain intact in Woodruff after the divorce proceeding, at best a
questionable assumption. Woodruff and his wife were married in 1961 and had
four children. See Barbour v. Barbour, 464 A.2d 915 (D.C. 1983) (pension
benefits are marital property subject to equitable division on divorce).
