Bookman v. Davidson, — So.3d —-, 2014 WL 1772707 (Fla. 1st DCA May 05, 2014)
There’s nothing like the threat of a malpractice suit to focus the mind. And in the trusts-and-estates context this risk is exponentially greater for all sorts of reasons, including the fact that you can get sued by lots of people who were never even your clients. How can this be you ask? Think privity of contract, then get used to the idea that this requirement’s been basically eliminated in most malpractice cases arising in the trusts-and-estates context (see here, here). This case continues the general trend in favor of expanding the possible universe of non-clients who can sue you for legal malpractice.
Successor PR steps into the shoes of his predecessor office holder:
When a personal representative (PR) hires you to be his attorney, your client’s acting in a representative capacity, which means the authority your PR is operating under belongs to the “office” of the PR, not the PR individually. So when your PR client steps down (or gets removed) before the estate-administration process is completed, the rights and duties he had in his representative capacity as PR don’t go with him, they stay behind for the next guy to take over and get the job done with. Here’s how the 1st DCA explained this point:
To accommodate the personal representative’s exercise of her or his duties, section 733.612, Florida Statutes, governs the transactions authorized by the personal representative, including the employment of an attorney. See § 733.612(19), Fla. Stat. Most significantly, section 733.614 addresses the “[p]owers and duties” of a successor personal representative:
A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate as expeditiously as possible, but shall not exercise any power made personal to the personal representative named in the will without court approval.
Therefore, the powers granted to the original personal representative flow to the successor personal representative.
No one would argue a PR can’t sue his own lawyer for malpractice. So does it then follow that his successor office holder can do the same? You’d think this question would have come up before, but it hasn’t, at least according to the 1st DCA:
This case presents a question of first impression in Florida, that being whether a successor personal representative of an estate may bring a cause of action for legal malpractice against an attorney hired by her or his predecessor to provide services necessary to the administration of the estate.
Does a successor PR have standing to sue a prior PR’s attorney for malpractice? YES
Not surprisingly, the attorney-defendant in this case raised the lack-of-privity defense. In other words, he argued that as a matter of law he can’t be sued for malpractice by someone (i.e., the successor PR) who was never his client. This argument won the day at the trial-court level, which dismissed the successor PR’s malpractice claim for lack of standing. On appeal, the privity defense went nowhere:
Primarily, appellee argued a successor personal representative is not in privity with the original personal representative’s attorney, a necessary prerequisite to maintaining a malpractice claim under Florida law. . . . In reaching our decision to reverse the summary final judgment, we conclude we need not address the privity issue. Instead, our decision is informed by the plain meaning of the language of the relevant statutes in the Florida Probate Code, sections 733.601–733.620, Florida Statutes. . . .
Rather than getting caught up in esoteric privity arguments, the 1st DCA skirted the issue entirely and instead based its ruling reinstating the malpractice suit on the probate-code provisions governing the flow of authority from an original PR to his successor office holder.
[T]here is no dispute that Ford, as the estate’s personal representative, had standing to bring suit against appellee for legal malpractice. Yet, by virtue of the plain language of section 733.614, we hold all of the power and rights Ford possessed, including the right to bring suit against appellee on behalf of the estate, likewise transferred to appellant as the successor personal representative. In essence, appellant stepped into the shoes of Dana Ford when he became the successor personal representative. Consequently, the trial court erred when it entered summary judgment in favor of appellee, claiming appellant lacked standing. Appellant, as successor personal representative, has every right and duty under the Florida Probate Code to pursue legal action for malpractice against appellee on behalf of the estate. Cf. Onofrio v. Johnston & Sasser, P.A., 782 So.2d 1019 (Fla. 5th DCA 2001).
Bottom line: If your PR client gets removed, it’s possible his successor (who may have been your adversary in the underlying removal proceeding) could end up suing you for malpractice.