OPINION
GREER, Presiding Judge.
Plaintiff Circie Franko brings this appeal from summary judgment entered in favor of defendant James M. Mitchell on Franko’s claims for breach of contract for professional legal services and legal malpractice.
ISSUES
To resolve the appeal, we must determine the following issues: (1) whether there existed genuine issues of material fact concerning the alleged attorney-client relationship between Mitchell and Franko; (2) whether there existed genuine issues of material fact concerning Franko’s contention that she was an intended third-party contract beneficiary; (3) whether Franko has a cause of action against Mitchell for legal malpractice; (4) whether Franko’s action should be allowed to proceed on a theory of negligent misrepresentation; and (5) whether Franko is eligible for an award of attorney’s fees on appeal pursuant to A.R.S. § 12-341.01(A).
FACTS
Because this is an appeal from summary judgment, the facts will be considered in the light most favorable to appellant Franko. State ex rel. Corbin v. Challenge, Inc., 151 Ariz. 20, 725 P.2d 727 (App.1986). Franko and Carl Markoff, Sr. (Markoff) were both single persons at all times relevant to this litigation. Franko first met Markoff before 1982. Beginning in April, 1982, Franko and Markoff began seeing each other on a regular basis and formed a very close, intimate relationship.
In the latter part of 1982, Markoff told Franko that he wanted his own business and needed money for a down payment to buy a bar. Markoff and Franko thereafter often discussed Markoff's desire to own his own bar. During that same period, Franko was in the process of selling her home, and Markoff suggested she lend him some of the proceeds. In her complaint, Franko alleged that during her discussion with Markoff concerning this proposal, Markoff made a number of false representations concerning insurance coverage on his life, his net worth, the amount of his equity in his home, the encumbrances on his home, his obligations to his former wife, the market value of his home, and the amount he would receive from the sale of his home.
Franko first met appellee Mitchell at a delicatessen in Scottsdale while she was having lunch with Markoff. Mitchell came into the delicatessen for lunch, whereupon Markoff introduced Mitchell to Franko as an attorney he knew. Nothing was said at that time concerning any representation of Franko or Markoff by Mitchell.
In March or April of 1983, Franko decided to lend Markoff money so he could make a down payment on a bar. Around June 13, 1983, Franko and Markoff discussed specific terms under which Franko would lend Markoff $30,000 for that purpose. According to Markoff, because he cared for Franko, he told her he wanted her to be protected with regard to repayment of the loan through an insurance policy on his life and an “interest” in the proceeds from the eventual sale of his home. Markoff also told Franko that a lawyer should prepare the loan documentation to provide the protection Markoff wanted Franko to have. Markoff specifically recommended that Mitchell, who Markoff told Franko was “extremely competent to draw up a note for us,” should prepare the necessary documentation for the protection of both Markoff and Franko. Because both Franko and her son had faith in Markoff, Franko accepted Markoff’s recoinmendation. Markoff told Franko he would make .an appointment with Mitchell on Franko’s behalf.
In June 1983, while Franko was not present, Markoff telephoned Mitchell to make an appointment to meet with him. During that conversation, Markoff outlined for Mitchell the terms of the promissory [394]*394note that Franko and Markoff had discussed. Markoff testified:
Q. Now, when you called Mr. Mitchell a week or so before July 6, was it your intention that you were seeking legal help for both yourself and Circie?
A. No, I wasn’t seeking legal help. I was seeking someone to draw up a legal document.
Q. For the protection of both you and Circie?
A. My intentions were to protect her as best I possibly could.
Q. And it was your belief that the attorney that you were recommending to her would serve that purpose, is that correct?
A. I had faith in Mr. Mitchell as being a competent attorney to draw up the document that I needed drawn up.
Q. Did you see Mr. Mitchell in your mind’s eye when you talked with him on the telephone that day a week or so prior to July 6 as only being your lawyer and not Circie’s lawyer?
A. I didn’t see him in the eyes of being anyone’s lawyer. I saw him drawing up a document that I needed drawn up.
Markoff also testified:
Q. Did you make ... known to Mr. Mitchell that you had that kind of feeling about Circie, that you wanted to protect her?
A. I didn’t discuss my personal relationship with Circie with Mr. Mitchell or anyone other than where it belonged.
Q. Now, in your conversation with Mr. Mitchell on the telephone approximately one week or so prior to July 6, did you tell him that the note that you wanted him to draft was intended for the protection of both you and Circie, that you wanted protection for this lady?
A. I don’t remember using those specific words to him. I remember asking him to draw up a note for a loan that I was contemplating making that way, someone loaning money that way. And I wanted a note drawn up.
Q. To protect both parties.
A. I don’t remember whether I said that directly or not. All I asked him to do is draw up a note in legal phraseology-
Although Markoff testified that it was his own understanding that Franko would be going with him to Mitchell’s office when the note was ready for signature, Markoff also testified that he did not recall telling Mitchell or anyone that Franko would be coming with him at that time. Markoff testified “I would assume that from the prior conversations with Mr. Mitchell in drawing up the note, that we would both sign the note at his office.”
The escrow on Franko’s house closed on July 5, 1983, and she received in excess of $40,000 as a result. That same day, Markoff called Mitchell’s office and asked Mitchell’s secretary when the note would be ready. Markoff was advised to call back the following morning. The next day, Markoff picked Franko up at her home, and the two drove to Mitchell’s office in Scottsdale.
Mitchell, Markoff and Franko met together in Mitchell’s office. During that meeting, Mitchell never stated that he was acting as Franko’s attorney in connection with preparing the note, but he also never said that he was not. During the discussion, Markoff told Mitchell what he wanted in the promissory note and Mitchell made notes on a legal pad. Markoff told Mitchell he wanted the note to state that Franko was lending him the money, that it would be paid back in a certain way, and that the note should be repaid from the proceeds from the sale of Markoff’s house and backed by term insurance on Markoff's life.
Concerning the meeting, Markoff testified:
Q. When you met with [Mitchell] in his office with Circie, did you indicate to him that it was your intention that both you and she be protected with regard to that instrument that was to be signed by you?
A. That was something I discussed with Circie and her son. And I assumed [395]*395that by drawing up a legal document with reference to the loan between she and I that way, this was our protection. It’s a legal document.
Q. Was that, however, discussed in Mr. Mitchell’s office with you and she and Mr. Mitchell in attendance?
A. Not to what I can recall that way.
Q. What is it that you recall concerning what you told Mr. Mitchell concerning protection?
A. All I recall is asking him to draw up a legal note and telling him what to put in the note.
At one point during the meeting in his office, Mitchell asked if there was anything else to be put into the note. Franko asked Markoff if he wanted anything else in the note and Markoff said he did not. Franko then told Mitchell she thought that everything had been covered. At another point in the meeting, Mitchell looked directly at Franko and told her that Markoff should set up the monthly premium on the term life insurance so that if Markoff did not pay it, a notice would be sent to Franko so she could pay it to keep the policy in force. Mitchell told her that this would eliminate the possible loss of the insurance.
The promissory note Mitchell prepared provided as follows:
$60,000.00 Scottsdale, Arizona
July 6, 1983
For value received the undersigned hereby promises to pay to Circie Franko, or order, at Scottsdale, Arizona, upon the terms and conditions following, the sum of Sixty Thousand Dollars ($60,000.00) in monthly installments of One Thousand Dollars ($1,000.00) including interest, commencing two (2) months from the date hereof, and continuing until the entire balance has been paid, from the income of 19th Avenue Food and Liquor, provided however, that upon the sale of the residence of the undersigned at 6565 East Shea Boulevard, Scottsdale, Arizona, there shall be paid from the proceeds, to the extent available, the difference between one-half of the face amount of this Note and one-half of the monthly installments theretofore made.
All amounts are payable in legal tender of the United States of America, and undersigned hereby waives notice, presentment and demand and agrees that any forebearance in the event of default shall not thereafter prohibit strict enforcement of this obligation according to its terms.
This Note is secured by the proceeds of a decreasing term life insurance policy on the life of the undersigned in the original face amount of Thirty Thousand Dollars ($30,000.00). In the event of the death of the undersigned prior to payment of the entire balance, the payee or holder shall be entitled to payment of the balance only from the sources herein mentioned and shall have no claim against the estate of the undersigned for any deficiency, over and above payment of one-half of the face amount of this Note, less one-half of the monthly installments theretofore made.
After the note had been typed, Mitchell handed it to Franko and she read it. Mitchell and Markoff both explained to Franko that the $60,000 face amount of the note included $30,000 interest. Mitchell asked Franko if the note had everything in it she wanted, and she replied that it did. Franko asked Mitchell if the note was “legal” and “had everything it should have.” Mitchell said that it did. Franko then asked him what she should do with it, and Mitchell told her to keep it in a safe place. Markoff then executed the note.
Before the meeting, Franko had told Markoff she wanted to pay Mitchell’s fee. Markoff insisted on paying the fee himself, and did so. Franko did not offer to pay the fee in Mitchell’s presence.
Mitchell’s affidavit in support of his motion for summary judgment stated, in pertinent part:
2. That Affiant has known Carl L. Markoff, Sr., ... for more than ten years.
3. That prior to July 5,1983, said Carl Markoff called Affiant at his home and inquired if Affiant could prepare a prom[396]*396issory note for Mr. Markoff to evidence indebtedness in the form of a loan Markoff would be receiving from Ms. Circie Franko.
4. That during the course of their telephone conversation, Mr. Markoff explained the terms of the loan and what he wanted the promissory note to contain. Affiant advised Mr. Markoff to call his office during regular business hours to make an appointment to pick up the note. ,
5. That Mr. Markoff called Affiant’s office on July 5, 1983 and inquired through Affiant’s secretary when the note would be ready, and Mr. Markoff was advised to call back the following morning after 9:00 A.M.
6. That Mr. Markoff and Ms. Franko arrived at Affiant’s office on [July 6, 1983] at which time Affiant and Mr. Markoff discussed the note further, in the presence of Ms. Franko. During the course of this discussion, all of the dialogue was between Affiant and Mr. Markoff.
7. That Affiant then proceeded to prepare the promissory note in accordance with instructions which he had received from Mr. Markoff. After drafting the note, he showed it to Mr. Markoff and Ms. Franko, who both indicated that it was satisfactory to them.
8. That as Mr. Markoff and Ms. Franko left Affiant’s offices, Mr. Markoff paid Affiant for his services.
9. That Mr. Markoff had introduced Ms. Franko to Affiant on at least one occasion prior to July 6,1983, but that he had never had any other discussion with her prior to July 6, 1983.
10. That Ms. Franko has never at any time asked Affiant for legal advice or to provide any legal services for her and that he had never agreed to provide any such professional services to her as a client.
Either at Mitchell’s office or after Franko and Markoff left his office, Franko gave Markoff a check for $30,000. Franko never received any payments from Markoff on the $30,000 loan. She received nothing from the later sale of Markoff’s home and, at one point, learned that the former owners of the bar had taken it over and that Markoff could no longer be reached there. Also, as far as Franko was aware, Markoff never took out the required term life insurance. The parties are in agreement that Markoff’s note is uncollectible.
PROCEDURAL HISTORY
Franko commenced the instant litigation on May 31, 1985. Her complaint asserted breach of contract and fraud claims against Markoff and breach of contract and legal malpractice claims against Mitchell. Markoff failed to answer the complaint, and a default judgment against him and in favor of Franko was entered on October 10,1985.
After answering the complaint, appellee Mitchell moved for summary judgment, arguing that he had not entered into an attorney-client relationship with Franko and owed no duty to her which could give rise to an action for breach of contract or legal malpractice. In response, Franko argued there were genuine issues of material fact concerning whether there was an attorney-client relationship between Mitchell and Franko and that, even in the absence of an attorney-client relationship, Mitchell had a duty to exercise reasonable care to protect her interests under the circumstances. The trial court granted Mitchell’s motion for summary judgment by minute entry of April 8, 1986, without stating its reasons. The trial court also denied Franko’s subsequent motion for reconsideration and motion to vacate the order denying the motion for reconsideration. From the trial court’s formal written orders granting Mitchell’s motion for summary judgment and denying Franko’s post-judgment motions, Franko timely brought this appeal. We have jurisdiction pursuant to A.R.S. §§ 12-2101(B) and (F)(1).
BREACH OF CONTRACT
We first consider Franko’s contention that there existed genuine issues of material fact, or conflicting inferences from undisputed facts, concerning whether an attorney-client relationship existed be[397]*397tween Franko and Mitchell and that, therefore, the trial court erred in granting summary judgment for Mitchell on Franko’s claim for breach of contract. See State ex rel. Corbin v. Challenge, Inc., 151 Ariz. 20, 725 P.2d 727. Whether the attorney-client relationship exists presents an issue for the trier of fact. Ronnigen v. Hertogs, 294 Minn. 7, 199 N.W.2d 420 (1972). Franko notes that at the time she and Markoff met with Mitchell, they, had a close, personal and nonadversarial relationship and that neither Mitchell nor Markoff told Franko that Mitchell was representing Markoff alone. Franko argues that, given the relationship between Markoff and Franko and the interactions between Franko and Mitchell at the meeting of July 6, 1983, a jury could reasonably conclude that Franko was entitled to rely on Mitchell as her attorney and that “[a]n attorney-client relationship thus existed between them that was violated as the result of Mitchell’s failure adequately to protect Franko’s interest with respect to the promissory note he prepared.”
In general, the relationship of attorney and client is a matter of contract except where an attorney is appointed by the court. 7A C.J.S. Attorney & Client § 169 at 249 (1980). The employment contract of an attorney consists of an offer or request by the client and an acceptance or assent by the attorney, or an offer by the attorney and acceptance of the offer by the client. Id. The contract may be express or implied from the conduct of the parties. Matter of Petrie, 154 Ariz. 295, 742 P.2d 796 (1987). An attorney who gives gratuitous advice will be held to the same standard of care as if he were under formal retainer. R. Mallen and V. Levitt, Legal Malpractice § 101 at 173-74 (1981); see also, Holland v. Lawless, 95 N.M. 490, 623 P.2d 1004 (App.1981).
The Arizona Supreme Court has recently held:
An attorney-client relationship does not require the payment of a fee but may be implied from the parties’ conduct. 7 Am. Jur.2d Attorneys at Law § 118 (1980); In re McGlothlen, 99 Wash.2d 515, 522, 663 P.2d 1330, 1334 (1983). The relationship is proved by showing that the party sought and received advice and assistance from the attorney in matters pertinent to the legal profession. 7 Am. Jur.2d Attorneys at Law § 118. The appropriate test is a subjective one, where ‘the court looks to the nature of the work performed and to the circumstances under which the confidences were divulged.’ Alexander v. Superior Court, 141 Ariz. 157, 162, 685 P.2d 1309, 1314 (1984), citing Developments of the Law—Conflicts of Interest in the Legal Profession, 94 HARV.L.REV. 1244, 1321-22 (1981). An important factor in evaluating the relationship is whether the client thought an attorney-client relationship existed. Alexander, 141 Ariz. at 162, 685 P.2d at 1314. The relationship is ongoing and gives rise to a continuing duty to the client unless and until the client clearly understands, or reasonably should understand that the relationship is no longer depended on. In re Weiner, 120 Ariz. 349, 352, 586 P.2d 194, 197 (1978).
Petrie, 154 Ariz. at 299-300, 742 P.2d at 800-01.
Although there is no evidence that Franko or Markoff ever told Mitchell he was to provide legal services to Franko as well as to Markoff, Mitchell’s statements to Franko concerning the insurance on Markoff and the legality and completeness of the note could be viewed as logically consistent with the existence of an attorney-client relationship between Franko and Mitchell, as well as the existence of an attorney-client relationship between Mitchell and Markoff. In our opinion, the evidence concerning the interactions between Franko and Mitchell in Mitchell’s office can legally sustain an inference that Mitchell was acting as Franko’s attorney and that there was an implied contract for legal services between them. Thus, there are conflicting inferences from the facts, and summary judgment on this issue was improperly granted.
The evidence, however, fails to sustain Franko’s alternative contention that [398]*398she was entitled to proceed against Mitchell for breach of contract on a third-party beneficiary theory. As our supreme court stated in Norton v. First Federal Savings, 128 Ariz. 176, 624 P.2d 854 (1981):
The Arizona rule is that in order for a person to recover as a third-party beneficiary of a contract, an intention to benefit that person must be indicated in the contract itself, Irwin v. Murphey, 81 Ariz. 148, 302 P.2d 534 (1956); Basurto v. Utah Construction & Mining Company, 15 Ariz.App. 35, 485 P.2d 859 (1971). The contemplated benefit must be both intentional and direct. Irwin, supra, Treadway v. Western Cotton Oil Etc. Co., 40 Ariz. 125, 10 P.2d 371 (1932), and ‘it must definitely appear that the parties intend to recognize the third party as the primary party in interest,’ Irwin, supra, at 154, 302 P.2d at 538.
Id. at 178, 624 P.2d at 856. In order to consider Franko’s alternative theory, we must assume that there was neither an express nor implied contract between Franko and Mitchell. Accordingly, Markoff and Mitchell would have to be the sole parties to the contract. Although there is ample evidence that Markoff told Franko he wanted to protect her interests and was having Mitchell prepare the promissory note, there is no evidence from which a trier of fact could reasonably infer that Mitchell had a similar understanding about the purpose of the transaction. The substantive terms of the note Mitchell drafted fully accord with this view. The illusory protections the note provided for Franko could only support the inference that Mitchell had no understanding that its preparation was primarily to benefit Franko. Therefore, the trial court properly granted summary judgment to Mitchell on Franko’s third-party beneficiary claim.
NEGLIGENCE (LEGAL MALPRACTICE)
Franko’s second claim is for legal malpractice. Specifically, she asserts that, even if Mitchell was not her attorney, he had a duty to protect her interests independent of the attorney-client relationship and that this duty was breached. Franko urges us to impose such a duty pursuant to the test adopted in Fickett v. Superior Court, 27 Ariz.App. 793, 558 P.2d 988 (1976). Although we believe Fickett may be applicable in situations similar to the one here, we conclude that Franko misconstrues the nature and extent of the duty owed by an attorney to a third party pursuant to Fickett.
A plaintiff may maintain an action in negligence by showing that the defendant owed plaintiff a duty, that the duty was breached, and that the breach proximately caused an injury which resulted in actual damages. Donnelly Const. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 677 P.2d 1292 (1984). Although a duty may be found pursuant to a contract, privity of contract is not a necessary element of a duty in a tort claim. Id. at 187, 677 P.2d at 1295. Accordingly, the mere absence of an attorney-client relationship, that is, privity of contract, will not bar a tort claim. Thus, we agree with Franko that our decision in Chalpin v. Brennan, 114 Ariz. 124, 559 P.2d 680 (App.1976), does not preclude Franko’s claim for negligence.
In Chalpin, the defendant was legal counsel for a corporation. In that capacity, he drafted certain option contracts and an employment-management agreement which allegedly contained material misrepresentations of fact. Plaintiff, who purchased stock in the corporation, brought a negligence claim against the defendant for legal malpractice. The trial court granted summary judgment for the defendant, and this court affirmed on appeal. We characterized the issue before us as “[wjhether an attorney should be held liable for legal, malpractice to a third party not his client and not in privity with him____” 114 Ariz. at 125, 559 P.2d at 681. We stated:
To impose upon counsel the responsibility of fully representing his client’s interests in a contractual situation and at the same time making him liable to a third party to the transaction for fraud and misrepresentations under malpractice theory we believe to be unreasonable and unwise. A holding to the contrary could conceivably encourage a party to contractual negotiations to forego per[399]*399sonal legal representation and then sue counsel representing the other contracting party for legal malpractice if the resulting contract later proves disfavorable in some respect.
We believe the soundest rule to be applied to the facts of this case is set forth in the line of cases which refuses to grant a cause of action for malpractice to an individual who is not a client or in privity with the attorney.
We do not condone the actions of attorney Brennan in this case, but believe that under Arizona law the proper remedy for his actions is the imposition of disciplinary proceedings through 17A ARS Sup. Ct.Rules, rule 29, et seq., and not by creation of a new cause of action founded on malpractice theory.
Id. at 126, 559 P.2d at 682 (citations omitted).
Less than one month after Chalpin was decided, Division Two of this court decided Fickett v. Superior Court, 27 Ariz.App. 793, 558 P.2d 988. In that case, the successor guardian of an incompetent brought a negligence action against the attorney for the former guardian, alleging that the attorney had owed to the incompetent a duty to exercise reasonable care to prevent the former guardian from misappropriating the incompetent’s funds. The trial court denied the attorney’s motion for summary judgment, and the attorney sought special action relief. Division Two of this court denied relief, specifically rejecting the attorney’s contention that he had owed no duty to the incompetent because the attorney-client relationship was strictly between the attorney and the former guardian. The court stated:
We are of the opinion that the better view is that the determination of whether, in a specific case, the attorney will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injuries suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.
Id. at 795, 558 P.2d at 990 (citations omitted). See generally Note, 19 Ariz.L.Rev. 653 (1977).
In Travelers Insurance Co. v. Breese, 138 Ariz. 508, 675 P.2d 1327 (App.1983), this court characterized Chalpin as having chosen to impose a privity requirement “under the facts in the case.” Id. at 513, 675 P.2d at 1332. Further, in resolving the particular issue before it, the Breese court’s analysis exclusively applied the Fickett balancing test, though it also noted that “the more restrictive approach adopted in Chalpin ” would also have denied a cause of action. Id. at 514, 675 P.2d at 1333.
Thereafter, our supreme court definitively rejected the privity requirement for malpractice liability in Donnelly Construction Co., 139 Ariz. 184, 677 P.2d 1292. In reversing the dismissal of a contractor’s claim against an architect for negligently preparing plans and specifications the contractor followed to its detriment, the Donnelly court stated: “There is no requirement of privity in this state to maintain an action in tort.” Id. at 187, 677 P.2d at 1295. The court specifically noted the Chalpin court’s refusal to grant a cause of action for legal malpractice to one who is not a client or in privity with the defendant attorney, and stated that it “expressly disapprove^] such blanket denials of causes of action____” Id. at 188, 677 P.2d at 1296. The court stated it would instead confront each such case as it came before it.1 We [400]*400note, however, that the Donnelly court did not specifically overrule Chalpin, but merely disapproved its privity analysis.
In light of the Donnelly court’s statement that questions of duty in malpractice cases brought by non-clients must be determined on a case-by-case basis, we deem it appropriate to follow the Fickett balancing test when determining whether an attorney’s liability should be extended to a third party. 27 Ariz.App. at 795, 558 P.2d at 990. We are of the opinion, however, that the test utilized in Fickett does not create a distinct duty of care towards a third party, as Franko suggests, but instead allows a third party in certain situations to sue an attorney for negligence to his client. That is, under the Fickett test any duty owed by an attorney to a third party is derivative of the duty owed by that attorney to his client.
Much like a third-party beneficiary can sue to enforce a contract made for his benefit, in certain circumstances, a third party non-client can sue an attorney for breach of the attorney-client contract. The test adopted in Fickett is concerned with the policy factors which may justify the extension of liability for negligent conduct beyond those persons who were in privity with the negligent person. Baldock v. Green, 109 Cal.App.3d 234, 167 Cal.Rptr. 157 (App.1980). “However, it is clear that before reaching the issue of how far the liability of a negligent attorney extends it must first be determined that the attorney committed a negligent act; that is, failed to use such skill, prudence and diligence as other members of the profession commonly possess and excercise.” Id. at 239, 167 Cal.Rptr. at 160. In short, at a minimum, there must be an allegation that the defendant attorney was negligent towards his client before utilizing a Fickett-type analysis to determine whether such liability should be extended to a third person.
Although typically not discussing this “lawyer-client negligence threshhold,” in virtually every case finding an attorney liable to a third party, there was negligence between the attorney and his client.2 Heyer v. Flaig, 70 Cal.2d 223, 74 Cal.Rptr. 225, 449 P.2d 161 (1969); Licata v. Spector, 26 Conn.Supp. 378, 225 A.2d 28 (1966). Similarly, an attorney retained by a collection agency to file suit on a debt who negligently caused the suit to be dismissed, was held liable to the nonclient creditor. Donald v. Garry, 19 Cal.App.3d 769, 97 Cal.Rptr. 191 (1971). In United Leasing Corp. v. Miller, 45 N.C.App. 400, 263 S.E.2d 313, pet. den., 300 N.C. 374, 267 S.E.2d 685, and later app., 60 N.C.App. 40, 298 S.E.2d 409, pet. den., 308 N.C. 194, 302 S.E.2d 248 (1983), a lessor stated a cause of action against an attorney, hired by a lessee to make a title search, due to the attorney’s negligence in failing to discover the existence of a lien. In short, Franko has cited no authority, and we have found none, to support her proposition that an attorney can be held liable to a third party in negligence under a Fickett-tyge analysis absent an allegation that the attorney was negligent to his client or that a unique fiduciary relationship existed between the attorney and third party. See generally, Annotation, Attorney’s Liability, to One Other than Immediate Client, for Negligence in Connection with Legal Duties, 61 A.L.R.4th 615 (1988).
The importance of this threshhold determination is demonstrated in Baldock v. Green, 109 Cal.App.3d 234, 167 Cal.Rptr. 157. There, a life estate consisting of cash was distributed to the widower of the dece[401]*401dent, with one-half of the remainder interest vesting in the decedent’s daughter and one-half vesting in her grandchildren. The widower was also the executor of the estate. Upon distribution, the widower/exeeutor deposited the money in a savings account naming decedent’s daughter as residuary legatee. After his death, all remaining funds in the account were released to the daughter.
The grandchildren brought a malpractice action against the attorney for the estate’s executor. The complaint alleged that the attorney had negligently advised and negligently failed to direct the actions of the executor, resulting in the loss of the remainder interest. The court observed that the attorney only represented the executor, and concluded he was not negligent in such representation. Id. at 239-41, 167 Cal. Rptr. at 161. In the absence of any negligence between the attorney and his client, the Baldock court saw no reason to undertake a Fickett-type analysis. Id. at 239, 167 Cal.Rptr. at 161. The court also noted that the plaintiffs were not deprived of their remedy against the “real culprit”— the executor’s estate and the executor’s daughter. Id. at 241, 167 Cal.Rptr. at 167.
Similarly, in Marker v. Greenberg, 313 N.W.2d 4 (Minn.1981), a son brought a malpractice action against an attorney who had drafted deeds, at the request of the father, conveying real estate to the father and son as joint tenants. After the father’s death, the entire value of the real estate was included in the gross estate for tax purposes because it was held in joint tenancy. The son alleged that the attorney was negligent in not conveying the property as a tenancy-in-common, thus decreasing the tax liability. After acknowledging the test adopted in Fickett, the Supreme Court of Minnesota refused to find that the attorney owed a duty to the son. The court noted that there was no invalidity or legal deficiency in the will and that the plaintiff did not allege that the disposition of the property was contrary to the intent of his father. Id. 313 N.W.2d at 6. Accordingly, the court concluded that the estate taxes due were the result of the father’s wishes, and not the result of any negligence by the attorney. Id. See also, Hiemstra v. Huston, 12 Cal.App.3d 1043, 91 Cal.Rptr. 296 (1970); Ventura City v. Holloway, 40 Cal.App.3d 897, 115 Cal.Rptr. 464 (App.1974).
Here, Franko does not allege, and the record does not disclose, any negligence between Mitchell and Markoff. The uncontroverted evidence is that Markoff alone told Mitchell what to include in the note and that Mitchell drafted the note precisely as instructed. In his deposition, Markoff testified that the provisions in the note were the ones he told Mitchell to include and that he never asked Mitchell to prepare a “security” or lien agreement. Similarly, Franko testified by deposition that she told Mitchell that the note “included everything.” As in Marker, there was no invalidity or legal deficiency in the note, and Franko does not allege that the note was drafted contrary to the communicated intent of Markoff.3 Accordingly, we conclude, as did the court in Marker, that any consequences of Mitchell’s actions were due to his client’s wishes, not as a result of Mitchell’s negligence.
In essence, the Fickett test is merely a framework for determining the particular circumstances under which a third party may sue an attorney for malpractice in the place of the client. That is, in some situations, an attorney owes a duty to a third party to use ordinary skill, care and diligence in rendering professional services to his client. Absent even an allegation of negligence between Mitchell and Markoff, Franko’s reliance on Fickett to extend liability to Mitchell is inappropriate. Baldock, 109 Cal.App.3d 234, 167 Cal.Rptr. 157. Since this is the only theory of third-party liability urged at trial and on appeal, we conclude that the trial court properly granted summary judgment to Mitchell on [402]*402this theory.4
Because this matter must be reversed in part and remanded for further proceedings, during which Franko may move pursuant to Rule 15(a), Ariz.R.Civ.P., to amend her complaint, we do not address Franko’s contention that her lawsuit should also be permitted to proceed on a theory of negligent misrepresentation.
ATTORNEY’S FEES
Franko has requested an award of attorney’s fees on appeal pursuant to A.R.S. § 12-341.01(A). This provision is inapplicable in legal malpractice actions. Barmat v. Partners, 155 Ariz. 519, 747 P.2d 1218 (1987). We therefore deny the request.
The judgment of the trial court dismissing the third-party beneficiary contract claim and the legal malpractice claim is affirmed; the dismissal of the attorney-client contract claim is reversed and this matter remanded to the trial court for proceedings in accordance with this decision.