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Dec. 23, 2025 Get Citation Alerts Download PDF Add Note

BERNSTEIN v. MORRIS (CIVIL)

Court of Appeals of Nevada

• Citations: 141 Nev. Adv. Op. No. 72

• Docket Number: 88873-COA

• Opinion

• Authorities (24)

• Cited By (0)

• Summaries (0)

• Similar Cases (28.8K)

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Combined Opinion

141 Nev., Advance Opinion .".Q

IN THE COURT OF APPEALS OF THE STATE OF NEVADA

CHRISTINE MELEO BERNSTEIN, No. 88873-COA
Appellant,
vs.
SHAWN L. MORRIS AND SHAWN L.
MORRIS, LTD.,
FILED
Respondents. DEC 23 2025

Christine Meleo Bernstein appeals from a district court order
granting a motion to dismiss a legal malpractice complaint. Eighth Judicial
District Court, Clark County; Carolyn Ellsworth, Sr. Judge.
Reversed and remanded.

Blut Law Group, APC, and Elliot S. Blut and Zahava Miriam Lieberman,
Las Vegas,
for Appellant.

Whitmire Law, PLLC, and James E. Whitmire, Las Vegas,
for Respondents.

BEFORE THE COURT OF APPEALS, BULLA, C.J., and GIBBONS and
WESTBROOK, JJ.

OPINION

By the Court, BULLA, C.J.:
Traditionally, within the common law, "every right, when
withheld, must have a remedy, and every injury its proper redress."

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Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (internal quotation
marks omitted). This overarching principle of the ability to redress wrongs
is ingrained in American jurisprudence. However, a remedy is hollow if
there is no party who has standing to pursue it. See, e.g., Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397
(1971) (recognizing a remedy not otherwise precluded to be available for
redressing a violated right).
In this opinion, we determine whether an intended third-party
beneficiary to a trust, the daughter of a deceased settlor, has standing to
sue the settlor's attorney for legal malpractice. Before his death, the settlor
hired an attorney to prepare the necessary trust documents to enable the
settlor to distribute a greater portion of the trust's assets to his daughter
upon his death than was available under the most recent version of the
trust. The attorney's alleged negligence in preparing these documents
resulted in the assets being distributed in accordance with the most recent
trust, thereby depriving his daughter of certain trust assets and causing her
inj ury.
In this appeal, we are asked to resolve whether the daughter,
as an intended third-party beneficiary, may sue the settlor's attorney for
legal malpractice to seek compensation for having not received the share of
trust assets that the settlor intended, or, alternatively, if she is left without
a remedy. Because we conclude that there are circumstances where a third-
party beneficiary may have standing to file suit against a settlor's attorney
for legal malpractice in a transactional matter, the district court erred in
dismissing the complaint for lack of standing as a matter of law. In reaching
our decision, we adopt the balancing test articulated in Lucas u. Hamm, 364
P.2d 685, 687-88 (Cal. 1961), as this test provides a remedy for third-party

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beneficiaries while still protecting the legal profession from unforeseen
liability in transactional matters. We also note that, consistent with Nelson
u. Burr, 138 Nev. 847, 851, 521 P.3d 1207, 1210-11 (2022) (distinguishing
when transactional and litigation malpractice claims accrue), transactional
legal malpractice claims are ripe once the plaintiff incurs costs litigating the
validity or meaning of the challenged documents. In this case, the claim
was ripe when Bernstein was forced to litigate the validity of the settlor's
trust documents. Thus, the district court likewise erred in dismissing the
underlying complaint on ripeness grounds.
FACTS AND PROCEDURAL HISTORY
Appellant Christine Meleo Bernstein and nonparty Darin
Meleo are the children of Anthony and Sharon Meleo and beneficiaries of
the Meleo Family Trust, which was established by Anthony and Sharon as
co-settlors.' On May 21, 2020, Sharon died and the trust, by its terms, could
no longer be "revoked, altered, amended, or terminated." However, a "power
of appointment"' could be exercised by the surviving spouse, as the settlor,

'Because this case was dismissed on an NRCP 12(b)(5) motion to
dismiss, neither the primary trust documents nor the purportedly deficient
amendments were included in the record before us. Therefore, we rely on
the factual allegations articulated in Bernstein's complaint—which must be
accepted as true in reviewing an NRCP 12(b)(5) dismissal on appeal, see
Buzz Stew, LLC u. City of North Las Vegas, 124 Nev. 224, 228, 181 P.3d 670,
672 (2008)—and the findings of fact from the related trust proceedings in
the district court for our recitation of the facts herein.

"As set forth in NRS 162B.075, a power of appointment is "a power
that enables a powerholder acting in a nonfiduciary capacity to designate a
recipient of an ownership interest in or another power of appointment over
the appointive property."
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to alter the distribution of trust assets, if the intent to exercise such power
was clearly expressed.3
Anthony, as surviving spouse and settlor, hired respondent
Shawn L. Morris and his law firm, respondent Shawn L. Morris, Ltd.
(collectively Morris), to alter the distribution of trust assets to favor
Bernstein over Darin. Morris drafted two amendments to the Meleo Family
Trust, which purported to execute Anthony's intention of changing the
distribution of trust assets to favor Bernstein. Bernstein alleges that this
was because Anthony had already given significant funds to Darin during
his lifetime and because of Darin's alleged personal issues. Following
Anthony's death, Darin challenged the validity of the trust amendments
prepared by Morris in district court, arguing that he should receive his
share of the trust assets as intended by the most recent trust because the
amendments reallocating trust assets were invalid.
During the trust proceedings, the district court found that the
amendments were invalid because they did not expressly reference
Anthony's power of appointment in order to change the distribution of trust
assets. See NRS 162B.300 (establishing requirements for exercising powers
of appointment). Further, insofar as the documents were framed as

3A settlor is one who sets up a trust. See Settlor, Black's Law
Dictionary (11th ed. 2019). A trustee is "one who holds trust property and
who is subject to the equitable duties to deal with it for the benefit of
another." 76 Am. Jur. 2d Trusts § 52 (2016). Relatedly, "[a] fiduciary
relation exists between two persons when one of them is under a duty to act
for or to give advice for the benefit of another upon matters within the scope
of the relation." In re Frei Irrevocable Tr. Dated Oct. 29, 1996, 133 Nev. 50,
58, 390 P.3d 646, 653 (2017) (internal quotation marks omitted). For the
purposes of NRS Chapter 162, the term Ifliduciary' includes a trustee
under any trust." NRS 162.020.
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amendments to the trust itself, the court found that, because the trust
became irrevocable upon Sharon's death, any such amendments were
expressly prohibited. Therefore, the district court concluded that the
amendments were ineffective, and Bernstein would only receive her share
of assets under the most recent trust.
Following the district court's order invalidating the
amendments, Bernstein sued Morris for legal malpractice. In Bernstein's
complaint, she alleged that Morris was hired by Anthony for the purpose of
transferring certain trust assets for her benefit and that Morris negligently
prepared documents to accomplish this, causing her injury by reducing her
share of trust assets contrary to Anthony's intentions. To redress this
injury, she requested monetary damages based on her reduced share of
trust assets, "costs of the suit incurred," and such other relief as
appropriate.
Morris then moved to dismiss the complaint under NRCP
12(b)(5), arguing that an attorney-client relationship is a necessary
condition for any legal malpractice claim, and there was no such
relationship between himself and Bernstein. Furthermore, Morris argued
that the case was not ripe because damages would not be known until the
final resolution of the underlying trust proceedings.
Bernstein opposed the motion, arguing that she had standing
to sue Morris for legal malpractice for drafting the invalid trust documents
because, as a third-party beneficiary of the trust, she was the intended
beneficiary of Anthony's decision to redistribute the trust assets. She
maintained that Nevada law does not preclude third-party standing in this
situation and argued that the district court should have applied the Lucas
test from California to find that she had standing as a third-party

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beneficiary to pursue her legal malpractice complaint against Morris.
Additionally, Bernstein argued that the case was ripe, as Nelson, 138 Nev.
at 851, 521 P.3d at 1211, holds that transactional malpractice claims are
ripe once some costs are incurred litigating the validity of the challenged
documents. Morris, in turn, argued that there was no privity of contract
between himself and Bernstein for her to bring a legal malpractice claim
against him and that Bernstein's damages were unknown as the trust
proceedings had not yet concluded, and therefore, any alleged claim was
premature. The district court agreed with Morris on both points and
dismissed Bernstein's complaint. Bernstein now appeals.
ANALYSIS
A district court's order granting a motion to dismiss for "failure
to state a claim upon which relief can be granted" is rigorously reviewed on
appeal. NRCP 12(b)(5); Buzz Stew, LLC v. City of North Las Vegas, 124
Nev. 224, 227-28, 181 P.3d 670, 672 (2008). In reviewing such an order, we
assume that all facts alleged in plaintiff s complaint are true, and we review
the district court's legal conclusions de novo. Buzz Stew, 124 Nev. at 228,
181 P.3d at 672. This court reviews the dismissal of a complaint for lack of
standing under the same rigorous, de novo standard as dismissal for failure
to state a claim. See Citizens for Cold Springs v. City of Reno, 125 Nev. 625,
629, 218 P.3d 847, 850 (2009); see also Shoen v. SAC Holding Corp., 122
Nev. 621, 634, 137 P.3d 1171, 1180 (2006) (observing that when a plaintiff
lacks standing, it is appropriate to dismiss the complaint for failure to state
a claim upon which relief may be granted), abrogated on other grounds by
Guzman v. Johnson, 137 Nev. 126, 483 P.3d 531 (2021).
For the reasons explained herein, we conclude that the district
court erred in dismissing Bernstein's complaint pursuant to NRCP 12(b)(5).
In particular, the court erred as a matter of law in concluding that
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Bernstein, as a third-party beneficiary of the trust, lacked standing to bring
a legal malpractice claim against Morris. The district court further erred
in determining that Bernstein's legal malpractice claim was not ripe.
Third-party beneficiaries may have standing to bring a legal nialpractice
claim
On appeal, Bernstein first argues that an intended third-party
beneficiary of an attorney-client relationship has standing to sue for legal
malpractice that occurred within that relationship. To support this
contention, Bernstein points to California authority that allows third-party
beneficiaries to sue when the third party's harm is sufficiently foreseeable
and such a suit would not create an undue burden on the profession. See
Lucas, 364 P.2d at 687-88 (adopting a balancing test to determine when a
third-party beneficiary has standing to sue for legal malpractice). Morris
counters that Canarelli v. Eighth Judicial District Court, 136 Nev. 247, 255,
464 P.3d 114, 122 (2020), precludes third-party beneficiary standing to
bring legal malpractice claims. In that case, our supreme court—relying on
NRS 162.310(1)4—held that "an attorney representing a trustee as a
fiduciary does not result in an attorney-client relationship between the
attorney and the beneficiary," for the purpose of establishing attorney-client
privilege. Canarelli, 136 Nev. at 255, 464 P.3d at 122. Bernstein's appeal
requires us to determine the extent of third-party beneficiary standing in

4NRS 162.310(1) provides that "[aln attorney who represents a
fiduciary does not, solely as a result of such attorney-client relationship,
assume a corresponding duty of care or other fiduciary duty to a principal."
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estate planning malpractice claims, which is a novel issue in Nevada and
was not addressed in Canarelli.5
To prevail on a legal malpractice action, a plaintiff must
generally show "the existence of an attorney-client relationship, the
existence of a duty on the part of a lawyer, failure to perform the duty, and
the negligence of the lawyer [as a] proximate cause of damage to the client."
Warmbrodt u. Blanchard, 100 Nev. 703, 706-07, 692 P.2d 1282, 1285 (1984)
(internal quotation marks omitted), superseded by statute on other grounds
as stated in Countrywide Home Loans, Inc. u. Thitchener, 124 Nev. 725, 740-
43 & n.39, 192 P.3d 243, 253-55 & n.39 (2008); Nat'l Saw Bank of D.C. v.
Ward, 100 U.S. 195, 200 (1879) (holding that "the general rule is that the
obligation of the attorney is to his client and not to a third party," but noting
that circumstances may merit otherwise).
Morris essentially argues that all the Warmbrodt elements
must be satisfied to impose liability against him. And because he was not
in an attorney-client relationship with Bernstein, the first Warmbrodt
element fails and liability cannot be imposed. He further contends that
Canarelli stands for the broad proposition that no attorney-client
relationship is formed between an attorney and a third-party beneficiary
and that, absent such a relationship, there can be no liability. As a result,
Morris argues Bernstein does not have standing to bring a legal malpractice
claim against him. We disagree.

5Although Charleson u. Hardesty, 108 Nev. 878, 883-84, 839 P.2d
1303, 1307-08 (1992), superseded in part by statute as stated in Canarelli,
136 Nev. at 255 n.3, 464 P.3d at 122 n.3, involved, among other things, an
issue of third-party beneficiaries suing for negligent drafting of
testamentary documents, in that case this issue was resolved on statute-of-
limitations grounds, thereby leaving the standing question unresolved.
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Canarelli, citing to NRS 162.310(1), states that "an attorney
representing a trustee as a fiduciary does not result in an attorney-client
relationship between the attorney and the beneficiary." 136 Nev. at 255,
464 P.3d at 122. But Canarelli and NRS 162.310(1) only apply where an
attorney is hired to represent a trustee in a fiduciary capacity. Id.
Therefore, Canarelli does not resolve the question presented here—whether
an attorney hired by the settlor to draft a trust instrument to reallocate
trust assets to a trust beneficiary owes a duty of care to that beneficiary for
whose benefit the settlor has decided to change the allocation of trust assets.
As NRS 162B.075 recognizes, a power of appointment is "a
power that enables a powerholder acting in a nonfiduciary capacity to
designate a recipient of an ownership interest in or another power of
appointment over the appointive property." (Emphasis added.) Thus, by
statute, to the extent Anthony utilized the power of appointment to attempt
to change the distribution of trust assets through the documents that he
hired Morris to draft, this exercise of power could only be done in a
nonfiduciary capacity.6 As a result, the fiduciary-based protections
provided by Canarelli and NRS 162.310(1) are inapplicable here.
In the absence of controlling authority, Bernstein urges us to
adopt the Lucas balancing test articulated by the California Supreme Court.
She argues that, under Lucas, as an intended third-party beneficiary of the

6The limited record before the court indicates that, at the time
Anthony sought to utilize the power of appointment to redistribute the trust
assets through the documents Morris was hired to draft, Anthony was both
the settlor of the trust and the trustee. Anthony's actions of changing the
distribution of assets in the trust were that of a settlor. See, e.g., In re
William J. Raggio Fatn. Tr., 136 Nev. 172, 177, 460 P.3d 969, 974 (2020)
(looking to the settlor's intent—as reflected by the trust instruments—to
determine the obligations of a trustee).
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trust, she has standing to bring a legal malpractice claim against Morris for
his negligent drafting of the trust instruments. Bernstein maintains that,
without standing to pursue this action, there is no remedy available for the
injury she incurred due to Morris's malpractice. She further asserts that
adopting a contrary approach would mean that "estate planners are
completely insulated from their own malpractice because their clients are
no longer living when the effects of the malpractice are felt and no one has
standing to sue them." Morris, on the other hand, neither substantively
addresses the authorities Bernstein cites in support of adopting the Lucas
balancing test nor the test itself and instead argues that, without privity of
contract between the plaintiff and the attorney, there can be no standing to
bring a legal malpractice claim. We consider both positions below.
In Lucas, the California Supreme Court considered an appeal
from the dismissal of a legal malpractice action brought by will beneficiaries
against the attorney who drafted the will. 364 P.2d at 686. The Lucas court
held that an attorney may be liable for legal malpractice based on a claim
brought by a third-party beneficiary plaintiff who lacks privity of contract
with the attorney. Id. at 688 (providing that the lack of privity did "not
preclude [the beneficiaries] from maintaining an action in tort against [the
attorney-drafted"). The court provided several factors to consider when
determining whether such liability exists: "the extent to which the
transaction was intended to affect the plaintiff, the foreseeability of harm
to [them], the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant's conduct and the
injury, ...the policy of preventing future harm," and "whether the
recognition of liability... would impose an undue burden on the
profession." Id. at 687-88; see also Hartford Accident & Indetn. Co. u.

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Rogers, 96 Nev. 576, 580, 613 P.2d 1025, 1027 (1980) (favorably citing Lucas
in holding that an attorney was not liable to a party opponent for
malpractice). In adopting this test, the court emphasized that taking a
contrary approach would result in the beneficiary bearing the loss caused
by the attorney's malpractice without any recourse. Lucas, 364 P.2d at 688.
The court noted that such a result would also impair the public policy goal
of preventing future harm. Id.
Subsequently, in Heyer u. Flaig, 449 P.2d 161, 164-65 (Cal.
1969), disapproued of on other grounds in Laird v. Blacker, 828 P.2d 691
(Cal. 1992), the California Supreme Court held that an attorney
undertaking to fulfill the testamentary instructions of their client
necessarily assumes a relationship with the client's beneficiaries, and
therefore, "the possibility of injury to an intended beneficiary" is
foreseeable. Id. After determining that the potential for injury was
foreseeable in such circumstances, the Heyer court concluded that the
attorney was liable to the beneficiaries of a will for negligence in drafting a
will that failed to defeat the inheritance rights of the testator's husband in
favor of certain beneficiaries as the testator intended. Id. at 165.
While Lucas and Heyer involved legal malpractice in the
drafting of wills, California courts have since extended the rule articulated
in those decisions to cases involving negligence in the drafting of trust
instruments. See, e.g., Bucquet u. Livingston, 129 Cal. Rptr. 514, 519 (Ct.
App. 1976) (concluding that the principles set forth in Lucas and Heyer are
4`equally applicable to inter vivos trusts . . . as there is no rational basis for

any distinction"). The California balancing test has subsequently been
adopted by other jurisdictions, which have concluded that public policy
favors allowing suits that will manifest the testator's intent, prevent the

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innocent beneficiary from bearing the cost of attorney malpractice, and
encourage greater care on the part of estate planning attorneys. See, e.g.,
Auric v. Cont'l Gas Co., 331 N.W.2d 325, 328-29 (Wis. 1983) (adopting the
California balancing test); Pizel v. Zuspann, 795 P.2d 42, 49-50 (Kan. 1990)
(same).
We recognize that some jurisdictions require strict privity of
contract between the plaintiff and attorney for a legal malpractice claim and
thus do not allow third-party beneficiary standing under the circumstances
presented here. See, e.g., Baker v. Wood, Ris & Hames, P.C., 364 P.3d 872,
878 (Colo. 2016) (finding the beneficiaries of a testator's estate-planning
documents lacked standing in a legal malpractice case against the
documents' drafter); Est. of Schneider u. Finmann, 933 N.E.2d 718, 720-21
(N.Y. 2010) (holding that only the client and the client's estate may sue a
drafter of testamentary documents for legal malpractice). While the district
court did not rely on this line of cases in resolving the underlying matter, it
essentially applied this approach in dismissing Bernstein's complaint. And
on appeal, Morris essentially advocates for the adoption of this approach,
although he too does not cite cases applying the strict privity approach.
Having considered the rationale in support of both the
California balancing test and the privity-of-contract approach, we agree
with Bernstein that the balancing test adopted by the Lucas court is the
better-reasoned approach.7 Courts adhering to the privity-of-contract

7Some jurisdictions have allowed standing in similar contexts based
on an intended third-party beneficiary suing for breach of contract between
the attorney and client, when it can be shown that the parties clearly
contracted to draft a document that would benefit the third party. See, e.g.,
Guy v. Liederbach, 459 A.2d 744, 750-52 (Pa. 1983) (adopting the contract
theory to permit standing for a named third-party beneficiary of a will that
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approach primarily rely on concerns that an expansion of liability to third-
party beneficiaries could invite unpredictable liability and undermine the
attorney's undivided loyalty to their client. See, e.g., Baker, 364 P.3d at 877.
But as the Heyer court recognized, the remedy provided by the California
balancing test is decidedly limited: through it, attorneys are only liable to
foreseeable plaintiffs as informed by the nature of the transaction. Heyer,
449 P.2d at 164-65. And the California approach further prioritizes the
objectives of the attorney-client relationship and only allows claims that
enforce the obligations of that relationship. Cf. Moore u. Anderson Zeigler
Disharoon Gallagher & Gray, 135 Cal. Rptr. 2d 888, 896 (Ct. App. 2003)
(dismissing a legal malpractice claim by third-party beneficiaries that
challenged the intent of the testator, rather than the attorney's
manifestation of that intent in preparing estate planning documents).
Overall, the Lucas test better serves the client by ensuring that
the client's intentions are fulfilled where the client's estate would be unable
to effectively pursue its claim against the attorney. Notably, when the
distribution of trust assets does not match a settlor's expressed intentions,
the overall value of the trust is not affected, and thus, "the estate is not
injured by such negligence, except to the extent of fees paid." See Bucquet,
129 Cal. Rptr. at 521 (noting that when testamentary assets are misdirected
due to malpractice in the drafting of the trust instruments, the estate could

was negligently drafted); Thorsen v. Richmond Soc'y for the Prevention of
Cruelty to Animals, 786 S.E.2d 453, 460 (Va. 2016) (permitting standing for
third parties when the attorney-client contract is clearly and definitely
intended to confer a benefit upon them). However, as the California
Supreme Court has recognized, given the availability of the tort-based
remedy articulated in Lucas, the contractual theory of recovery "is
conceptually superfluous since the crux of the action must lie in tort in any
case; there can be no recovery without negligence." Heyer, 449 P.2d at 164.
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only recover the amount of attorney fees paid, while "the beneficiaries suffer
the real loss"). Indeed, "[u]nless the beneficiaries can recover against the
attorney, no one could do so and the social policy of preventing future harm
would be frustrated." Id. Furthermore, permitting a third-party
beneficiary who is allegedly damaged as a result of the distribution standing
to sue encourages greater care on the part of estate planning attorneys. See,
e.g., Auric, 331 N.W.2d at 329 ("Allowing a will beneficiary to maintain a
suit against an attorney who negligently drafts or supervises the execution
of a will is one way to make an attorney accountable for his negligence.").
And critically—absent standing for intended third-party beneficiaries to sue
when an attorney's negligence in drafting trust instruments results in the
loss of an intended inheritance—the beneficiary would be without any
recourse to recover the damages caused by the attorney's negligence.
Having determined that the Lucas balancing test provides the
best-reasoned approach to addressing third-party beneficiary standing to
bring a legal malpractice action, we must now examine the propriety of the
district court's dismissal of Bernstein's complaint in light of that approach.
Here, Bernstein's complaint alleged that "Anthony hired [Morris] to act as
his legal counsel" to "leave a larger share of his estate to [Bernstein],"
asserting that this was "the entire purpose for which [a]ttorney Morris was
hired." Taking the allegations in Bernstein's complaint as true, as required,
Bernstein has alleged sufficient facts that, if proven, could support the
conclusion that Anthony intended to benefit Bernstein by hiring Morris to
prepare the required documents for Anthony, as the settlor exercising his
power of appointment, to transfer additional trust assets to Bernstein.
Bernstein further alleged that Morris failed to properly exercise
Anthony's power of appointment and instead improperly drafted documents

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purporting to amend the trust—which could no longer be amended after
Sharon's death—resulting in the invalidation of the amendments in the
trust proceedings. As a result, Bernstein alleged she was deprived of certain
trust assets that Anthony intended her to receive, causing her injury.
Applying the remaining Lucas balancing test factors, we conclude that
Bernstein's complaint sufficiently pleaded facts that, if true, would enable
her to pursue a legal malpractice claim against Morris. Specifically, her
allegations support that she suffered foreseeable harm, established a degree
of certainty that Bernstein suffered injury (receiving fewer trust assets),
and demonstrated a close connection between Morris's conduct and that
injury. Finally, as Bernstein argues, without the availability of a legal
malpractice claim for a third-party beneficiary, she would lack standing to
sue Morris for her injury arising from his alleged legal malpractice. In this
circumstance, there would be no available legal recourse to ensure that
Anthony's intentions to redistribute trust assets to Bernstein were honored.
In summary, applying the Lucas balancing test to the
allegations set forth in Bernstein's complaint, and accepting her allegations
as true, we cannot conclude that she "could prove no set of facts, which, if
true, would entitle [her] to relief." Buzz Stew, 124 Nev. at 228, 181 P.3d at
672. Therefore, we reverse the district court's dismissal of Bernstein's
complaint for lack of standing under NRCP 12(b)(5).
Transactional legal malpractice actions are ripe once costs are incurred
Bernstein next argues that her case was ripe because the
district court's adverse ruling in the trust proceedings made her aware of
the existence of damages based on the alleged malpractice, even though the
final amount of her damages had not yet been determined. Morris
disagrees, arguing that the case is premature because, if damages are not

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final, they might not materialize once the associated trust proceedings are
ultimately resolved.
"As a general rule, a legal malpractice action does not accrue
until the plaintiff knows, or should know, all the facts relevant to the
[malpractice] elements and damage has been sustained." Hewitt u. Allen,
118 Nev. 216, 221, 43 P.3d 345, 347-48 (2002). In transactional malpractice
cases, for which litigation is required to determine the legal meaning of
drafted documents, a litigant "sustains damage by assuming the expense,
inconvenience and risk of having to maintain such litigation." Gonzales u.
Stewart Title of N. Neu., 111 Nev. 1350, 1353-54, 905 P.2d 176, 178 (1995).
Once a litigant incurs any additional costs in retaining an attorney
regarding the contested documents, they can sue for transactional
malpractice, "even though the amount of the damages is uncertain." Nelson,
138 Nev. at 851, 521 P.3d at 1211.
In Nelson, errors in drafting trust documents became relevant
in divorce litigation years later. Id. at 848-49, 521 P.3d at 1209. There, our
supreme court held that the statute of limitations for a transactional
malpractice claim commenced once the meaning of the documents was
"called into question and extensively litigated" and was not tolled until the
court's final decision quantifying damages, if any. Id. at 852, 521 P.3d at
1212. Accordingly, the claim accrued, and the statute of limitations began
when the parties commenced litigating the validity of the trust amendments
prepared by Morris. Id.
Here, Bernstein incurred the cost of hiring an attorney to argue
the validity of the trust amendments prepared by Morris. Therefore, the
statute of limitations for Bernstein's malpractice claim commenced once she
incurred the cost of hiring an attorney to litigate in the trust proceedings.

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As such, filing this case before the trust proceedings were finally resolved
was proper, notwithstanding the indeterminacy of damages from the
distribution of trust assets themselves. Thus, we also reverse the district
court's dismissal of Bernstein's complaint on the ground of ripeness.
CONCLUSION
In adopting the Lucas balancing test, we conclude that
Bernstein's claim for legal malpractice is not barred, as a matter of law,
despite Bernstein lacking privity of contract with Morris. Taking all factual
allegations in Bernstein's complaint as true and all inferences in her favor,
we agree that Bernstein's complaint has stated sufficient facts to withstand
scrutiny under NRCP 12(b)(5), and therefore, the district court erred in
dismissing Bernstein's complaint under this rule. Further, Bernstein's
complaint for transactional legal malpractice is ripe, as she alleged that she
has incurred attorney fees and litigation costs in determining the validity
of the trust documents Morris drafted. Accordingly, we reverse the district
court's decision and remand this matter to the district court for further
proceedings consistent with this opinion.

Bulla
4 .••••11"ww•awala„, , C.J.

We concur:

J.

Westbitok
COURT OF APPEALS
OF
NEVADA
17
(01 IVOR e