joined by ABBOTT, Justice, dissenting.
With an obscure reference to “the greater good,” 923 S.W.2d at 578, the Court unjustifiably insulates an entire class of negligent lawyers from the consequences of their wrongdoing, and unjustly denies legal recourse to the grandchildren for whose benefit Ms. Barcelo hired a lawyer in the first place. I dissent.
By refusing to recognize a lawyer’s duty to beneficiaries of a will, the Court embraces a rule recognized in only four states,1 while simultaneously rejecting the rule in an overwhelming majority of jurisdictions.2 Not*580withstanding the fact that in recent years the Court has sought to align itself with the mainstream of American jurisprudence,3 the Court inexplicably balks in this case.
The threshold question in a negligence action, including a legal malpractice suit, is duty. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); see Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex.1989) (holding that a legal malpractice action in Texas is grounded in negligence). Whether a defendant owes a duty to the plaintiff depends on several factors, including risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against injury, and the consequences of placing the burden on the defendant. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990).
The foreseeability of harm in this case is not open to serious question. Because Ms. Barcelo hired Mr. Elliott to accomplish the transfer of her estate to her grandchildren upon her death, the potential harm to the beneficiaries if the testamentary documents were incorrectly drafted was plainly foreseeable. See Lucas, 15 Cal.Rptr. at 824, 364 P.2d at 688; see also Heyer v. Flaig, 70 Cal.2d 223, 74 Cal.Rptr. 225, 228, 449 P.2d 161, 164-65 (1969) (“The attorney’s actions and omissions will affect the success of the client’s testamentary scheme; and thus the possibility of thwarting the testator’s wishes immediately becomes foreseeable. Equally foreseeable is the possibility of injury to an intended beneficiary.”). Foreseeability of harm weighs heavily in favor of recognizing a duty to intended beneficiaries.
Additionally, the Court’s decision means that, as a practical matter, no one has the right to sue for the lawyer’s negligent frustration of the testator’s intent. A flaw in a will or other testamentary document is not likely be discovered until the client’s death. And, generally, the estate suffers no harm from a negligently drafted testamentary document. Heyer, 74 Cal.Rptr. at 228, 449 P.2d at 165. Allowing beneficiaries to sue would provide accountability and thus an incentive for lawyers to use greater care in estate planning. Robert L. Rabin, Tort Recovery for Negligently Inflicted Economic Loss, 37 StaN.L.Rev. 1513, 1521 (1985). Instead, the Court decides that an innocent party must bear the burden of the lawyer’s error. The Court also gives no consideration to the fair adjustment of the loss between the parties, one of the traditional objectives of tort law. See W. Page Keeton et al., PROsser and Keeton on the Law of Torts § 4, at 24-25 (5th ed. 1984); Robert E. Litan et al, The U.S. Liability System: Background and Trends, in Liability: PERSPECTIVES and POLICY 1, 3 (Robert E. Litan and Clifford Winston eds., 1988). These grounds for the imposition of a legal duty in tort law generally, which apply to lawyers in every other context, are no less important in estate planning.
Nor do the reasons the Court gives for refusing to impose a duty under these cir-*581eumstances withstand scrutiny. Contrary to the Court’s view, recognizing an action by the intended beneficiaries would not extend a lawyer’s duty to the general public, but only to a limited, foreseeable class. Because estate planning attorneys generally do not face any liability in this context, potential liability to the intended beneficiaries would not place them in a worse position than attorneys in any other setting.
The Court also hypothesizes that liability to estate beneficiaries may conflict with the attorney’s duty to the client. Before the beneficiaries could prevail in a suit against the attorney, however, they would necessarily have to show that the attorney breached a duty to the decedent. This is because the lawyer’s duty to the client is to see that the client’s intentions are realized by the very documents the client has hired the lawyer to draft. No conflicting duty to the beneficiaries is imposed.
Searching for other hypothetical problems that might arise if a cause of action for the beneficiaries is recognized, the Court observes that a will not executed at the testator’s death could in fact express the testator’s true intentions. 923 S.W.2d at 578. Granted, such a scenario may be the result of either the testator’s indecision or the attorney’s negligence. Similarly, a family member might be intentionally omitted from a will at the testator’s direction, or negligently omitted because of the drafting lawyer’s mistake. In other words, what appears to be attorney negligence may actually reflect the testator’s wishes.
But surely these are matters subject to proof, as in all other cases. Nothing distinguishes this class of cases from many others in this respect. The Court fails to consider that the beneficiaries will in each case bear the burden of establishing that the attorney breached a duty to the testator, which resulted in damages to the beneficiaries. Lawyers, wishing to protect themselves from • liability, may document the testator’s intentions.
In addition, Elliott suggests that allowing beneficiaries to sue the testator’s attorney would interfere with the attorney-client privilege, by either encouraging attorneys to violate clients’ confidences or by hindering attorneys’ ability to defend their actions. This concern, too, is unfounded. Under Texas law, the attorney-client privilege does not survive the testator. Krumb v. Porter, 152 S.W.2d 495, 497 (Tex.Civ.App.— San Antonio 1941, writ ref'd); see Thomas v. Pryor, 847 S.W.2d 303, 305 (Tex.App.— Dallas 1992), writ granted and case remanded pursuant to settlement, 863 S.W.2d 462 (Tex.1993); see also Stappas v. Stappas, 271 Ala. 138, 122 So.2d 393, 396 (1960); Denver Nat’l Bank v. McLagan, 133 Colo. 487, 298 P.2d 386, 388 (1956); Manley v. Combs, 197 Ga. 768, 30 S.E.2d 485, 493 (1944); 1 McCoRMiCK on Evidence § 94 (4th ed. 1992); 8 John HenRY WlGMORE, WlGMORE ON EVIDENCE § 2314 (3d ed. 1940). This is because the lawyer-client privilege applies only to confidential communications, which are “not intended to be disclosed to third persons.” Tex.R.Civ.Evid. 503(a)(5). And, as Professor Wigmore has explained, “[a]s to the tenor and execution of the will, it seems hardly open to dispute that they are the very facts which the testator expected and intended to be disclosed after his death.” WigmoRE § 2314, at 613 (emphasis in original).
In sum, I would hold that the intended beneficiary of a will or testamentary trust may bring a cause of action against an attorney whose negligence caused the beneficiary to lose a legacy in whole or in part. Accordingly, I would reverse the judgment of the court of appeals and remand this case to the trial court.
. See Williams v. Bryan, Cave, McPheeters & McRoberts, 774 S.W.2d 847, 849 (Mo.Ct.App.1989); St. Mary's Church v. Tomek, 212 Neb. 728, 325 N.W.2d 164, 165 (1982); Viscardi v. Lerner, 125 A.D.2d 662, 510 N.Y.S.2d 183, 185 (1986); Simon v. Zipperstein, 32 Ohio St.3d 74, 512 N.E.2d 636, 638(1987).
. See Rathblott v. Levin, 697 F.Supp. 817, 819-20 (D.N.J.1988) (applying New Jersey law); Wisdom v. Neal, 568 F.Supp. 4, 8 (D.N.M.1982) (applying New Mexico law); Lucas v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 824, 364 P.2d 685, 688 (1961), cert. denied, 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d 525 (1962); Stowe v. Smith, 184 Conn. 194, 441 A.2d 81, 83-84 (1981); Needham v. Hamilton, 459 A.2d 1060, 1062 (D.C.1983); Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So.2d 315, 317 (Fla.Dist.Ct.App.1985); Ogle v. Fuiten, 102 Ill.2d 356, 80 Ill.Dec. 772, 775, 466 N.E.2d 224, 227 (1984); Walker v. Lawson, 514 N.E.2d 629, 633 (Ind.Ct.App.1987); Schreiner v. Scoville, 410 N.W.2d 679, 682 (Iowa 1987); Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, 51 (1990); Succession of Killingsworth, 292 So.2d 536, 542 (La. 1973); Mieras v. DeBona, 204 Mich.App. 703, 516 N.W.2d 154, 157 (1994); Simpson v. Calivas, 139 N.H. 1, 650 A.2d 318, 322-23 (1994); Hale v. Groce, 304 Or. 281, 744 P.2d 1289, 1292 (1987); Guy v. Liederbach, 501 *580Pa. 47, 459 A.2d 744, 746 (1983); Trask v. Butler, 123 Wash.2d 835, 872 P.2d 1080, 1084 (1994); Auric v. Continental Casualty Co., 111 Wis.2d 507, 331 N.W.2d 325, 327 (1983). See also Restatement (Third) of the Law Governing Lawyers § 73(3) & cmt. f, illus. 2 (Tentative Draft No. 7, 1994) (recognizing lawyer’s duty to a will beneficiary and stating that lawyer has duty to non-client when lawyer "knows that a client intends the lawyer’s services to benefit the non-client, and such a duty substantially promotes enforcement of the lawyer's obligations to the client and would not create inconsistent duties”).
. See, e.g., In re Humphreys, 880 S.W.2d 402, 407-08 (Tex. 1994) (holding that willful tax evasion is a crime involving moral turpitude); National County Mut. Fire Ins. Co. v. Johnson, 879 S.W.2d 1, 3-4 (Tex.1993) (holding that family member exclusions in automobile insurance contracts are invalid); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 755-56 (Tex.1993) (holding that commencement of a lawsuit by an incapacitated person, considered alone, is insufficient to deny tolling of statute of limitations); Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex.1993) (recognizing cause of action for intentional infliction of emotional distress); Association of Texas Professional Educators v. Kirby, 788 S.W.2d 827, 829-30 (Tex.1990) (recognizing a narrow exception to the enrolled bill rule); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 353-54 (Tex.1990) (holding that discovery rule does not apply when statute specifically provides accrual date for cause of action); Willis v. Maverick, 760 S.W.2d 642, 646-47 (Tex. 1988) (holding that the discovery rule applies to legal malpractice actions); Spring Branch I.S.D. v. Stamos, 695 S.W.2d 556, 559-60 (Tex. 1985) (holding that a student’s right to participate in extracurricular activities is not a fundamental constitutional right).