Ark. Code Ann. § 16-22-310 (2026)

Research References

Ark. L. Rev.

Morrison & George, Arkansas's Privity Requirement for Attorney and Accountant Liability, 51 Ark. L. Rev. 697.

Legal Malpractice: The Law in Arkansas and Ways to Avoid Its Reach, 55 Ark. L. Rev. 267.

Molly S. Magee, Comment: Who Is the Client? Who Has the Privilege?: The Attorney Client Privilege in Trust Relationships in Arkansas, 65 Ark. L. Rev. 637 (2012).

U. Ark. Little Rock L. Rev.

Survey — Attorneys, 10 U. Ark. Little Rock L.J. 539.

Annual Survey of Caselaw, Tort Law, 24 U. Ark. Little Rock L. Rev. 1085.

Annual Survey of Case Law: Practice, Procedure, and Courts, 29 U. Ark. Little Rock L. Rev. 905.

Case Notes

Applicability.

This section exempts from its privity requirement actions involving fraud, collusion, or malicious or tortious acts. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

This section does not apply to federal civil rights claims. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

As a general rule, an attorney is not liable to persons not in privity with him for negligence in the performance of his duties; the attorney is held liable only for conduct constituting fraud, intentional misrepresentations, or intentional torts. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

This section protects attorneys from liability to those not in privity with them but excepts from this protection actions for intentional fraud. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993).

The contract contemplated by this section relates to a contract for professional services performed by the attorney for the client; thus, where the asserted contract did not relate to attorney's performance of professional services rendered to plaintiff, but rather the alleged breach appears to have been related to attorney's representation of plaintiff's husband in matters concerning divorce, the alleged contract did not involve attorney's legal representation of plaintiff, and privity of contract was lacking. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996).

Where wife's attorney in divorce suit negotiated the terms of a general settlement with the husband's attorney and the wife subsequently refused to accept the settlement agreement, the husband could not seek to hold the wife's attorney liable to him under a claim of breach of an implied promise; the wife's attorney was not in privity of contract with the husband and there were no allegations of fraud or misrepresentation by the wife's attorney. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002).

Because this section did not bar client's claim of professional negligence against the lawyer and a material fact remained as to whether the client was in privity with the lawyer, and a material fact remained as to whether there was an employer-employee relationship between the lawyer and the firm at the time of the lawyer's alleged negligence, the trial court erred in granting summary judgment for the lawyer and the law firm. Jackson v. Ivory, 353 Ark. 847, 120 S.W.3d 587 (2003).

Because insurers were not in direct privity with attorneys who allegedly provided inadequate representation to an insured, and a valuation sent to one insurer did not indicate that the insurer was a party intended to rely on the valuation, this section precluded the insurers from suing the attorneys for legal malpractice.Great American Ins. Co. v. Dover, 456 F.3d 909 (8th Cir. 2006).

In a negligence action, the real question was whether the property appraiser owed any legal duty to the plaintiff property owners, and the plaintiffs' reliance on §§ 4-86-101, 16-114-303, and 16-22-310 to support their proposition that privity of contract with an appraiser was not a requirement in their negligence suit was misplaced. Marlar v. Daniel, 368 Ark. 505, 247 S.W.3d 473 (2007).

Where heirs had filed an action against lawyers alleging negligence related to a will executed by their deceased relative, the lawyers were entitled to summary judgment because none of the heirs had ever had a lawyer-client relationship with the lawyers. Under this section, the lawyers were protected from such actions filed by persons with whom they were not in privity. Yeary v. Baptist Health Found., No. 4:06CV01702 JLH, 2008 U.S. Dist. LEXIS 1376 (E.D. Ark. Jan. 7, 2008).

Dismissal was proper in an action by debtors against a law firm acting as a debt collector because the firm was immune from claims of abuse of process, civil conspiracy, constructive fraud, and negligence under this section. Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324 (2010).

Bond counsel was not liable to the banks for malpractice for failing to indicate in the disclosure documents prepared for the bond underwriter that there was a prior lien on the real property pledged as security for the bonds because the banks did not have direct privity of contract or any attorney-client relationship with counsel. First Ark. Bank & Trust v. Gill Elrod Ragon Owen & Sherman, P.A., 2013 Ark. 159, 427 S.W.3d 47 (2013).

Constitutionality.

This section does not usurp Supreme Court's authority to regulate the practice of law as the statute enunciates the parameters for litigation by clients against attorneys and does not conflict with any rule or decision by the Supreme Court. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996).

Construction.

The language of this section appears to be nothing more than a restatement of the general rule of liability. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

Trial court properly concluded that the lawyer placed a lien on land in which he believed the landowner held an interest and that the acts were the lawful actions of an attorney representing his client; therefore, the lawyer was immune under this section and § 16-114-303 from the landowner's slander of title lawsuit. Fleming v. Cox Law Firm, 363 Ark. 17, 210 S.W.3d 866 (2005).

Purpose.

This section was not intended to make attorneys immune from liability for damages in the case of an intentional tort, but appears to be a legislative statement that the privity requirement still exists in connection with contract or negligence actions. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

If this section were to grant an attorney immunity from liability for abuse of process, then this section would be a shield behind which an attorney could take action to intentionally and improperly deprive someone of his property. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

Attorney’s Fees.

Attorney’s fees should not have been awarded under § 16-22-308 because the action was not primarily based in contract; the case sounded primarily in tort because, in order for a cause of action for legal malpractice to be maintained, the contractual relationship requirement in this section had to be met. The core dispute was whether there was an oral contract to make a claim against an attorney and his legal-malpractice carrier. Howard v. Adams, 2012 Ark. App. 562, 424 S.W.3d 337 (2012).

Employees.

Employer attorney was not entitled to the immunity protection of this section for her own negligence in not adequately supervising her employee, another attorney, who was suspected of dishonest conduct in his transaction with clients who were not in privity of contract with the employer attorney, as the employer attorney's negligence was not related to the performance of professional services as required under the statute, but instead involved her supervision of his conduct as his employer. Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001).

Exceptions.

Although this section uses the terms fraud or intentional misrepresentation when discussing exceptions to the privity requirement, the exception includes intentional torts that are committed on third parties. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

A limited exception to the strict privity rule is commonly made when the third party is found to be a third party beneficiary. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

The exception to this section appears to be for intentional actions. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993).

Exception in subdivision (a)(2) did not apply in the case of trustees who brought a legal malpractice action against a lawyer and others; the lawyer was aware that the purpose of the lawyer's relationship with the trustees as individuals was to benefit the trusts, and the trustees did not present any specific evidence that showed that the statutory requirements had been met. Giles v. Harrington, Miller, Neihouse & Krug, 362 Ark. 338, 208 S.W.3d 197 (2005).

Second exception to the general rule of privity in § 16-22-310(a)(2) on which trusts relied in their legal malpractice claims against attorneys was inapplicable because the trusts had no potential action against one attorney due to lack of the statutorily required privity of contract with him, and the trusts' claims that an attorney's acts during the second period of representation affected the 1999 claim regarding a sale of the family farm failed. While it was undisputed that counsel during the first period of representation was aware that the purpose of his relationship with the individuals was to benefit the trusts, the trusts did not present any specific evidence, such as specific documents or correspondence, that showed that the statutory requirements as to sending correspondence had been met. Giles v. Harrington, Miller, Neihouse & Krug, 362 Ark. 338, 208 S.W.3d 197 (2005).

Bond counsel could not be liable to the banks under subdivision (a)(2) of this section for failing to indicate in the disclosure documents prepared for the bond underwriter that there was a prior lien on the real property pledged as security for the bonds because there was no writing by which counsel identified the banks as persons counsel's services were intended to benefit or influence. First Ark. Bank & Trust v. Gill Elrod Ragon Owen & Sherman, P.A., 2013 Ark. 159, 427 S.W.3d 47 (2013).

Fraud.

Complaint alleging actual fraud and constructive fraud against the attorney for an opposing party in prior litigation dismissed for failure to state claim under ARCP 12(b)(6). Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993).

Where there was no factual basis for the conclusory allegation in plaintiff's amended complaint that attorney intentionally misrepresented his statement of neutrality in divorce case, the attorney was immune under this section. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996).

Pursuant to §§ 16-22-310(a)(1) and 16-114-303, an attorney and law firm were immune from a couple's slander of title claim where there was no privity between the parties, there were no factual assertions of fraud, and it appeared that a lis pendens action to enforce a child arrearage judgment obtained by the husband's ex-wife was simply filed in error. Fleming v. Cox Law Firm, 363 Ark. 17, 210 S.W.3d 866 (2005).

Bond counsel was not entitled to summary judgment on the claim that he committed malpractice by failing to indicate in the disclosure documents prepared for the bond underwriter that there was a prior lien on the real property pledged as security for the bonds because there remained genuine issues of material fact on whether the existence of the prior lien was a material item of information that should have been disclosed by bond counsel, whether the failure to disclose was an intentional omission, and whether the failure to disclose was done with the intent to defraud bond purchasers as a means to secure the fees bond counsel expected to realize from the bond transaction. First Ark. Bank & Trust v. Gill Elrod Ragon Owen & Sherman, P.A., 2013 Ark. 159, 427 S.W.3d 47 (2013).

Relation to Other Remedies.

Where this section precluded insurers from filing a legal malpractice claim against attorneys who allegedly provided inadequate representation for an insured, the insurers also could not recover from the attorneys under a theory of equitable subrogation; allowing the insurers to proceed under that alternative theory would contravene this section, which enunciates the parameters for litigation by clients against attorneys. Great American Ins. Co. v. Dover, 456 F.3d 909 (8th Cir. 2006).

Respondeat Superior.

Client's respondeat superior claims against the law firm were not barred by this section due to lack of privity between the client and the lawyer who worked for the law firm. Jackson v. Ivory, 353 Ark. 847, 120 S.W.3d 587 (2003).

Standing.

Privity of contract is not required in order to have a cause of action against an attorney for intentional misrepresentations or fraud. Calandro v. Parkerson, 327 Ark. 131, 936 S.W.2d 755 (1997).

A plaintiff in a legal malpractice action must be in direct privity with the attorney or entity being sued for legal malpractice; thus, the children of a decedent could not bring a legal malpractice action against the attorney who drafted the decedent's will either under a theory of indirect privity or as third-party beneficiaries of the contract for legal representation. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

The children of a decedent did not have standing to bring a legal malpractice action against the attorney who drafted the decedent's will under the exception contained in subdivision (a)(2) of this section, as there was no evidence that the attorney ever sent a copy of the will to the children. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

A decedent's personal representatives did not have standing to bring a legal malpractice action against the attorney who drafted the decedent's will as there was direct privity between the decedent and the attorney. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

Although the law firm, lawyer's estate, and attorneys were in privity of contract with the individuals who created the trusts and became trustees, the existence of privity for the claims against the attorneys did not stand on its own because the actual claims of legal malpractice occurred during the lawyer's representation when the trustees had no privity with the firm; thus, the trustees were without standing to bring their legal malpractice suit and the trial court was without jurisdiction to hear the case. Giles v. Harrington, Miller, Neihouse & Krug, 362 Ark. 338, 208 S.W.3d 197 (2005).

Trustees lacked standing to file legal malpractice claims against appellees, attorneys, and a law firm, because appellees provided legal services for the sale of a family farm to the trustees in their individual capacities, and not to the trusts of which the individuals were trustees. Although the parties were, in fact, the same individuals, they were different legal entities from the trusts; thus privity for the individuals did not necessarily equate to privity for the trusts, and the trustees had no privity of contract with appellees as required by § 16-22-310(a). Giles v. Harrington, Miller, Neihouse & Krug, 362 Ark. 338, 208 S.W.3d 197 (2005).

Where a decedent, prior to his death, and his wife retained the services of a lawyer to set up a revocable trust for the benefit of the decedent's son, where the decedent became incapacitated before executing deeds to transfer his assets to the trust, where the lawyer consulted with the decedent's son and wife and petitioned to have the son appointed guardian so that he could execute the deeds, where the lawyer did not disclose that, if the son did not sign the deed, he would inherit by intestate succession but that, if he executed the deeds, his stepmother would gain control and could divest him of the assets, and where the stepmother did just that after the decedent succumbed, the trial court erred in granting summary judgment to attorneys hired to pursue a legal malpractice claim against the lawyer and in holding that no valid claim existed because the son lacked privity of contract with his father's lawyer. Summary judgment was improper because the evidence revealed conflicting accounts of the son's contractual relationship with the lawyer and gave rise to the implication that the lawyer had a duty to advise the son of his inheritance rights and the possibility that his stepmother could cut him out of the trust. Howard v. Adams, 2009 Ark. App. 621, 332 S.W.3d 24 (2009).