The rule so hard that getting it wrong wasn't malpractice.

A will, a shortfall, and a lawsuit

Eugene H. Emmick died and left a will and trust drafted by his attorney, L. S. Hamm. The people who were supposed to inherit, among them Robert Lucas, later claimed the instrument was written so carelessly that part of the gift they were meant to receive failed. The trust provisions, they said, ran afoul of two old property doctrines: the Rule Against Perpetuities and the related rule limiting restraints on alienation. Rather than fight to salvage a clause that might not survive a challenge, the beneficiaries settled with Emmick's blood relatives and, by their account, walked away with about 75,000 dollars less than the will intended.

So they sued the lawyer. Not their lawyer, though. Hamm had drafted the will for Emmick, not for them. Under the law as it had long stood, that distinction should have ended the case before it began. The decision that followed, Lucas v. Hamm, 56 Cal.2d 583, decided by the California Supreme Court in 1961, did two things at once, and they pull in opposite directions. It is one reason the case still appears on both malpractice outlines and property syllabi.

The wall that used to protect drafters

For most of the common law's history, a lawyer owed a duty only to the client who hired him. The doctrine was called privity, and it meant that a stranger to the attorney-client relationship, even one who lost real money because of the lawyer's mistake, generally could not sue. A disappointed will beneficiary was the classic example. The person harmed by a botched will is almost never the client, because the client is dead by the time the error surfaces.

Three years earlier, in Biakanja v. Irving, the same court had let an intended beneficiary recover against a notary public who had invalidly prepared a will. InLucas, Chief Justice Phil S. Gibson, writing for the court, extended that reasoning to licensed attorneys. Whether a professional owes a duty to someone outside the contract, the court said, turns on a balance of factors: how foreseeable the harm was, how clearly the work was meant to benefit that person, how directly the loss flowed from the mistake, and the public interest in holding careless drafters to account. Applying that test, the court held that an intended beneficiary may sue the drafting attorney, both in negligence and as a third-party beneficiary of the contract to draft the will.

The privity wall came down. After Lucas, a will beneficiary who never hired the lawyer could still hold that lawyer responsible for a negligent error in the instrument.

The rule that even good lawyers fear

Having opened the courthouse door, the court then declined to walk the plaintiffs through it. The reason was the nature of the specific mistake. The Rule Against Perpetuities is one of the most notorious doctrines in all of Anglo-American law. Its classic statement, from John Chipman Gray's 1886 treatise, is deceptively short: no interest is good unless it must vest, if at all, no later than twenty-one years after some life in being when the interest is created. In plain terms, the law refuses to let a person tie up property for too long into an uncertain future, so a gift that might not settle who owns it within that window is simply void from the start.

The rule sounds tidy and is anything but. Applying it correctly means imagining every far-fetched sequence of births, deaths, and events that could theoretically delay an interest from vesting, and voiding the gift if even one improbable scenario would push it past the limit. Generations of law students have failed to see the trap, and so have practicing lawyers. The court in Lucas was blunt about that reality. Few areas of law, it wrote, have concealed more traps for the unwary drafter, and it borrowed a well-known phrase for the hazard: the Rule sets out a "net which the Rule spreads for the unwary."

Difficulty as a defense

From that premise the court reached its striking conclusion. Because the Rule Against Perpetuities and the doctrine on restraints on alienation are so difficult, an attorney of ordinary skill and diligence could fail to apply them correctly and still not fall below the professional standard of care. In other words, the drafter's error, whatever it cost the beneficiaries, was not negligence as a matter of law. The plaintiffs had won the right to sue, then lost on the merits, because the very thing that made the mistake so damaging, the rule's difficulty, was also its excuse.

This is the half of Lucas that has not aged as gracefully. Legal-malpractice commentators have long treated the idea that a perpetuities error can never be negligent as a product of its moment rather than a durable rule. The duty holding, that a drafter answers to the intended beneficiary, has been reaffirmed and built upon in California and widely followed elsewhere. The suggestion that a whole category of drafting mistakes is too hard to be actionable is read far more narrowly today, and a lawyer would be unwise to assume a court would extend the same grace now.