In tort, a lawyer generally owes no duty of care to non-clients unless certain conditions apply. Which of the following situations could give rise to liability to a third party?

• A. The lawyer breaches confidentiality to their own client
• B. The lawyer has assumed responsibility to the third party
• C. The lawyer makes a negligent misstatement to the third party
• D. The lawyer undertakes to assist the opposing client

Answer: (B)

The key idea is that a lawyer generally does not owe a duty of care to people who aren’t their clients, but a duty can arise when the lawyer explicitly takes on responsibility for a third party. If a lawyer undertakes to assume responsibility to a third party, that creates a relationship in which the third party can rely on the lawyer’s competence and diligence. If the lawyer then fails to meet the standard of care in fulfilling that undertaking, the third party can bring a tort claim for negligence.

Breach of confidentiality to the lawyer’s own client stays within duties owed to the client; it doesn’t automatically create liability to a third party unless there’s some separate basis for harm to the third party, which isn’t the scenario described. A negligent misstatement to a third party can sometimes give rise to liability, but that depends on the existence of a duty of care to the third party based on reliance and foreseeability, making it less predictable than the clear undertaking to third-party responsibility. Undertaking to assist the opposing client would more typically relate to duties within the lawyer–client relationship or conflict concerns, not to a third party outside that relationship. Therefore, the strongest and most straightforward way a third party can gain a duty of care from a lawyer is when the lawyer has expressly assumed responsibility to them.