New Jersey Formally Adopts Restatement (Third) § 51 to Define When Lawyers Owe a Duty of Care to Non-Clients

1. Introduction

This decision resolves a recurring and consequential question in New Jersey legal-malpractice law: when, if ever, does an attorney owe a duty of care to a person who is not the attorney’s client such that the non-client may sue for malpractice?

The litigation arises from estate-planning services performed by attorney Anthony A. Boyadjis for brothers Peter and Nicholas (Nick) Christakos. Plaintiffs are Despina (Alice) Christakos, the widow of the brothers’ late sibling James, and Helen Alexandra Christakos, James’s daughter (and herself an attorney). They alleged Boyadjis’s negligence in (i) advising about the brothers’ 2003 mirror-image wills, and (ii) drafting the brothers’ 2018 wills.

The core issue on appeal was not whether Boyadjis made mistakes (he admitted two), but whether he owed Helen a legally cognizable duty as a non-client. The Appellate Division held a duty existed as to Alice (an intended beneficiary under the 2018 wills), but not Helen (omitted from the 2018 wills). The Supreme Court used the case to articulate a clear statewide standard governing non-client duty.

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited

The Court’s contribution is not merely application but standardization: it organizes prior New Jersey decisions into two Restatement-based pathways and rejects a broader, less predictable balancing test.

A. Reliance-based non-client duty: Petrillo v. Bachenberg and Banco Popular North America v. Gandi

The Court grounds Restatement § 51(2) in two seminal New Jersey reliance cases:

• Petrillo v. Bachenberg: The Court previously held attorneys may owe a duty to non-clients when the attorney knows (or should know) the non-client will rely on the attorney’s representations and the non-client is not too remote. In this opinion, Petrillo supplies the template for misrepresentation scenarios where a non-client’s reliance is central and foreseeable.
• Banco Popular North America v. Gandi: The Court reiterates that “invitation to rely and reliance are the linchpins” of attorney liability to third parties under this prong. Where an attorney intends a specific non-client (there, a bank) to rely on an opinion letter, duty can arise. Conversely, absent invitation, representation, and reliance—especially for remote parties—no duty.

These cases directly drive the result for Helen under § 51(2): she had no communications with Boyadjis after her initial referral email, received no statements from him, and did not rely on any opinion or service.

B. Intended-beneficiary duty in estate planning: Pivnick v. Beck and the Restatement’s “clear and convincing” safeguard

For Restatement § 51(3), the Court leans on:

• Pivnick v. Beck: The Appellate Division (affirmed o.b.) required clear and convincing evidence to overcome the text of solemnly executed testamentary documents when a disappointed would-be beneficiary claims the lawyer failed to capture intent. This opinion uses Pivnick to operationalize Restatement § 51(3) in will-drafting malpractice claims brought by non-clients.

The Court further adopts Restatement comment f’s will-focused examples, particularly:

• Illustration 3: If intent to benefit the non-client does not appear on the face of the will, the non-client must produce clear and convincing evidence that the client communicated to the lawyer an intent that the non-client be a beneficiary.
• Illustration 4: A lawyer is not liable in negligence to an heir who alleges the lawyer assisted an incompetent client to execute a will, because recognizing such a duty would impair lawyers’ ability to assist clients whose competence could later be challenged.

C. Limits on expanding duty: LoBiondo v. Shwartz and Green v. Morgan Props.

The Court situates its doctrinal move within New Jersey’s consistent reluctance to broaden attorney exposure to third parties:

• LoBiondo v. Shwartz: Reaffirms that absent a direct relationship, duty to a non-client ordinarily does not exist, reflecting policy concerns about chilling zealous advocacy.
• Green v. Morgan Props.: Emphasizes that non-client malpractice claims are “exceedingly narrow,” reinforcing why a bounded Restatement test is preferred.

D. Rejecting a broad balancing test: Stewart v. Sbarro and Lucas v. Hamm

The Court explicitly declines to adopt the six-factor balancing approach used in:

• Stewart v. Sbarro (adopting California’s approach), which in turn relied on
• Lucas v. Hamm.

While some factors overlap with Restatement considerations, the Court finds the Lucas/Stewart balancing test introduces unnecessary uncertainty and is harder to apply consistently—especially problematic in defining professional obligations ex ante.

E. Estate administration context: Estate of Albanese v. Lolio

Boyadjis urged a “communication-based” approach, invoking Estate of Albanese v. Lolio. The Court rejects the framing, and notes its holding is consistent with Albanese, which declined to extend a lawyer’s duty to non-executrix estate beneficiaries and highlighted the absence of communications to those beneficiaries.

F. Standards and procedure supporting the outcome: Brill v. Guardian Life Ins. Co. of Am., In re Seamen, and Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh

• Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh: Supplies the de novo review standard for summary judgment.
• Brill v. Guardian Life Ins. Co. of Am.: Provides the framework for determining whether a genuine issue of material fact exists, tied to the evidentiary burden at trial.
• In re Seamen: Defines “clear and convincing evidence,” which becomes outcome-determinative in assessing whether Helen could establish a § 51(3) duty.

G. Malpractice elements baseline: McGrogan v. Till

The Court reiterates the familiar tripartite malpractice elements from McGrogan v. Till, emphasizing that for non-clients the threshold obstacle is typically the first element: duty.

H. Fee-shifting is flagged but not decided: Saffer v. Willoughby

The NJSBA raised a potential limitation on fee-shifting under Saffer v. Willoughby, but the Court expressly does not reach the issue, as it was not raised or adopted by any party.

3.2 Legal Reasoning

The Court’s reasoning proceeds in three structured steps:

Step 1: Select a controlling, statewide duty standard

Acknowledging doctrinal ambiguity and policy sensitivity, the Court formally adopts Restatement (Third) § 51(2) and § 51(3), emphasizing that it has already relied on those provisions in prior cases but had not expressly made them controlling. The decision is explicitly motivated by the need to carefully circumscribe non-client malpractice liability to avoid chilling zealous advocacy.

Step 2: Apply § 51(2) (invitation to rely + reliance)

Helen’s claim fails at the threshold because neither element exists: there was no invitation by Boyadjis (or by his clients with his acquiescence) for Helen to rely on any opinion or legal service, and there was no actual reliance by Helen. Her single referral email did not transform her into a relying third party; she remained outside the attorney-client exchange.

Step 3: Apply § 51(3) (intended primary benefit + safeguards)

Because the 2018 wills did not name Helen, her attempt to establish that she was an intended beneficiary triggers the Restatement/Pivnick safeguard: she must show, by clear and convincing evidence, that Peter and Nick communicated to Boyadjis an intent that she benefit.

The Court finds the record falls far short. At most, Boyadjis’s notes and testimony showed Peter may have contemplated giving something to Helen at one time. But that is not clear and convincing evidence of a communicated, primary objective carried into the final wills—particularly in light of contrary evidence: Peter’s handwritten note omitting Helen, the guardianship report indicating Nick did not want Helen involved, and repeated indications that the brothers did not want nieces/nephew to inherit.

Separate barrier: No duty premised on alleged lack of testamentary capacity

Helen also tried to reframe her claim: if Nick lacked testamentary capacity in 2018, the 2003 will would control and she would inherit. The Court rejects this as a basis for duty to a purported heir, adopting Restatement comment f, Illustration 4: imposing negligence liability to heirs for assisting allegedly incompetent testators would impair lawyers’ performance of duties to their clients and could conflict with vigorous representation.

3.3 Impact

This opinion’s primary impact is doctrinal clarity and risk containment:

• A single statewide test: New Jersey courts now have an explicit, two-track Restatement framework for non-client duty: (i) reliance-based (§ 51(2)) and (ii) intended-benefit-based (§ 51(3)).
• Estate-planning malpractice is narrowed and disciplined: Disappointed non-clients omitted from testamentary documents face a high evidentiary gate—clear and convincing proof of communicated intent—reducing speculative “I deserved more” litigation.
• No negligence duty to heirs based on competence disputes: The Court’s endorsement of Illustration 4 materially limits malpractice claims that attempt to relitigate capacity through tort duty to would-be beneficiaries.
• Predictability for lawyers: Rejecting the Lucas/Stewart balancing test reduces after-the-fact duty expansion and allows estate planners and litigators to assess third-party exposure more reliably.
• Practical effect on pleadings and summary judgment: The opinion aligns duty determinations with the trial burden. Where clear and convincing proof is required, courts may more readily resolve duty at summary judgment if the evidentiary record cannot meet that standard.

4. Complex Concepts Simplified

• Non-client duty of care: A lawyer usually owes duties only to the client. A non-client may sue only in limited circumstances recognized by law.
• Restatement § 51(2) (reliance pathway): Duty can arise when the lawyer (or the client with the lawyer’s agreement) invites a specific non-client to rely on legal work, and the non-client actually relies.
• Restatement § 51(3) (intended-benefit pathway): Duty can arise when the lawyer knows the client’s primary objective is to benefit a non-client, recognizing that the non-client may be the only practical enforcer after the client’s death.
• “Clear and convincing evidence”: A higher standard than “more likely than not.” It requires evidence strong enough to produce a firm belief or conviction.
• Mirror-image wills: Two wills drafted with essentially the same terms (commonly used by spouses or, here, siblings), often leaving everything to the other and naming alternate beneficiaries.
• Per stirpes: Distribution “by branch,” meaning descendants take the share their deceased parent would have taken.
• Caveat: A filing that blocks or challenges probate, often prompting litigation over a will’s validity or meaning.
• Reformation of a will: A court remedy to correct a document to reflect true intent, typically requiring strong proof.
• Administrator C.T.A.: A court-appointed administrator who serves when a will exists but there is no able or willing executor.
• Testamentary capacity: The mental ability to understand making a will, the nature of one’s property, and the natural objects of one’s bounty.

5. Conclusion

Despina Alice Christakos v. Anthony A. Boyadjis, Esq. is a landmark New Jersey duty decision. It formally adopts Restatement (Third) § 51 as the governing standard for when lawyers owe a duty of care to non-clients, consolidating prior reliance-based and intended-beneficiary strands into a coherent framework.

Applied here, the framework bars Helen’s malpractice claim because she neither relied on Boyadjis’s advice (§ 51(2)) nor produced clear and convincing evidence that the decedents communicated an intent to benefit her in the 2018 wills (§ 51(3)). The Court also rejects attempts by would-be heirs to found duty on alleged lack of testamentary capacity, endorsing the Restatement’s warning that such a duty would impair attorneys’ obligations to their clients.

The broader significance is a clearer, narrower, and more predictable boundary for third-party malpractice liability—especially in the estate-planning context—balancing remedies for genuine drafting failures against the systemic need for client-centered, zealous representation.