No California Case Directly On Point, But Two Out-Of-State Cases Suggest "No."
Can a guarantor of a client's fee obligation to client's attorney sue the attorney for malpractice if the client does not somehow participate or intervene? Although there is no California case on the subject to our knowledge, two out-of-state decisions suggest the answer is likely "no."
The closest California authority, Borissof v. Taylor & Faust, 33 Cal.4th 523, 530 (2004), generally holds that third parties not in contractual privity with the attorney cannot sue for malpractice unless they were intended beneficiaries of the attorney-client relationship, an exception which would likely not apply to a guarantor.
The two out-of-state cases are DeAngelis v. Rose, 320 N.J. Super. 263, 727 A.2d 61 (N.J. App. Div. 1999), which did hold that a guarantor cannot sue for malpractice against client's attorney unless the client joins in the action or unless guarantor relied on attorney-client communications during the relationship, and Schroeder v. Hudgins, 142 Ariz. 395, 398-400 (Ariz. Ct. App. 1984), which by analogy held that a guarantor of an LLC could not sue LLC's former attorney based on the notion that malpractice actions are personal/not assignable in a fair number of jurisdictions.
If any of our readers have a different perspective or know of a California case on point, let us know.