concurring:
I concur in the result but disagree with the majority’s reasoning. The majority reasons, first, that the partnership between Berk and his sister continued in existence even after partnership dissolution and a final tax accounting, and, second, that Berk had authori*220ty, on behalf of the partnership, to assert a partnership claim against the partnership’s counsel during the wind up period. That reasoning goes against the Maryland Uniform Partnership Act, Md.Code Ann. §§ 9— 606(c), -608 (1993), the express language of the partnership agreement, and the intent of the partners as evidenced by the rendering of a “final” tax accounting indicating the end of their limited partnership, the sole purpose of which had already been accomplished.
The majority’s interpretation of Maryland law with respect to partnership termination and the right of a non-managing partner to sue on behalf of a partnership during wind up may well be wrong1 and, for the reasons expressed below, I believe, unnecessary to resolution of this case. If it were necessary to decide those issues, I would certify the questions to the Maryland Court of Appeals because I do not think that the legal principles involved are as uncomplicated as the majority suggests and, as the majority recognizes, “the Maryland courts have never addressed this precise issue,” ante at 217. See D.C.Code § ll-723(h) (1995) (permitting certification of issues of law to the highest court of any state in cases where the law of that state is determinative and there is no controlling precedent from that state).
In any event, although I disagree with the majority’s analysis, I agree with the result, because Berk may bring the action against the partnership’s former counsel in his personal capacity as an individual partner who was an intended beneficiary of the lawyers’ services to the partnership and who was harmed as a result of counsel’s alleged malpractice, breach of contract and breach of fiduciary duty. Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618 (1985).2
Berk’s partnership with his sister had one purpose, to dispose of the property jointly owned by them. Although each of the partners was separately represented during the formation of the partnership, partnership counsel represented the partnership — and the partners’ interests therein — in the sale of the property. Berk claims that, as one of only two partners in this sole purpose partnership, he was an intended beneficiary of partnership counsel’s services and was directly harmed by partnership counsel’s drafting mistakes and failure to negotiate a better price for the sale of the property. Once Berk’s sister, as managing partner, declined *221to bring the claim on behalf of the partnership, it was abandoned as a partnership asset3 and its enforcement devolved on the individual partners. A question would then arise whether the partnership’s failure to assert the claim can be used to estop Berk’s action. That question, as well as the issue whether Berk can prove that he was an intended beneficiary of counsel’s representation of the partnership involve as-yet-unresolved matters of fact appropriate for the trial court.
In light of those factual issues in dispute, at this summary judgment stage, because Berk is not precluded as a matter of Maryland law from bringing the action in his individual capacity, the litigation should proceed. If Berk were to succeed in proving that he was an intended beneficiary of counsel’s representation of the partnership as well as the other elements of his asserted causes of action, he could recover in proportion to the interest he had in the partnership.
. With respect to termination of the partnership, the majority does not say when the partnership would terminate, only that it had not terminated when Berk sued the partnership’s counsel some two-and-a-half years after the purpose of the partnership had been achieved and a final tax accounting rendered. The majority thus interprets the words of the statute, "until the winding up of partnership affairs is completed,” § 9-601, to mean that the partnership continues in a wind up posture not only for so long as there are outstanding partnership liabilities, for which there is some precedent under Maryland law in the case of law partnerships with continuing ethical obligations to their clients, see Resnick v. Kaplan, 49 Md.App. 499, 434 A.2d 582, 587 (Md.1981), but also for so long as there are any unliquidated partnership assets, for which the majority cites no support in Maryland caselaw.
With respect to Berk’s authority to sue on behalf of the partnership, the majority relies on § 9-606(c), which binds a partnership to third parties for actions taken by a partner during wind up, "except where the partner has no authority to wind up partnership affairs”; and on section 9-608, which authorizes a partner to wind up the partnership's affairs "unless otherwise agreed." Thus, the statute, by its terms, does not override the partnership agreement. In this case, the partnership agreement clearly gave exclusive management and control over the partnership's affairs to Berk’s sister, with only certain limited exceptions. Cf. Allen v. Steinberg, 244 Md. 119, 223 A.2d 240, 247 (1966) (noting that it is difficult to stretch specific authorization in a partnership agreement to "promote land development" and to "execute all necessary deeds, bills of sale or any and all other papers ... in order to effectuate the purpose of the said partnership” to include authorization to mortgage land or obtain unsecured loans). Therefore, Berk had "no authority to wind up partnership affairs” under § 9-606(c) because in the partnership agreement he had “otherwise agreed,” as provided in § 9-608, that his sister was the managing partner with such authority.
. In our view, the scope of duty concept in negligence actions may be analogized to the third party beneficiary concept in the context of attorney malpractice cases. Thus, to establish a duty owed by the attorney to the non-client, the latter must allege and prove that the intent of the client to benefit the nonclient was a direct purpose of the transaction or relationship. In this regard, the test for third party recovery is whether the intent to benefit actually existed, not whether there could have been an intent to benefit the third party.
Flaherty, supra, 492 A.2d at 625.
. Berk’s suit challenging the managing partner's decision not to sue partnership counsel was dismissed by the Maryland courts. See ante note 6.