September 26, 2011
What exactly are an attorney's legal obligations to his client? In
Estate of Lee v. Colussi, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 39A01-1011-ES-622, the trial court concluded that an attorney did not have a duty to perform a particular task when representing a client in a probation action. The estate appealed and the Court of Appeals provided a different answer.
less..
In this case, an attorney represented an estate in which the will named two people as co-personal representatives. The attorney advised them that either of them could conduct business for the estate and instructed one of them to open an estate account. The estate was liquidated and placed into that account. In the meantime, the co-personal representative who opened the account began writing checks on the Estate account for her personal use, the use of her family and in-laws, and the use of the three other beneficiaries of the will. The account was depleted and overdrawn.
After it was learned that the co-personal representative had misused estate funds, the estate filed a complaint against the attorney, alleging that he had committed legal malpractice by failing "to inform himself as to the status of Estate assets or monitor their use." The attorney moved for summary judgment and the trial court granted that motion, holding that the attorney had no duty to inform himself as to the status of estate assets or monitor their use. the estate appealed.
On appeal, the Court found that the trial court impermissibly conflated the issues of duty and breach.
It is undisputed that Colussi was employed as an attorney for the Estate. Thus, there is no question that Colussi owed a general duty to the Estate to exercise ordinary skill and knowledge as an attorney. ... Whether Colussi's failure to monitor or control the Estate bank account amounted to a violation of his duty to the Estate is a question of breach.
In this case, the estate presented the testimony of an expert who testified that the applicable standard of care requires an attorney for an estate to retain the estate's checkbook, thereby requiring the personal representative to come to the attorney's office to obtain checks. This testimony was sufficient to establish a genuine issue of material fact. The estate did not need to prove that the practice advocated by its expert was "a uniform and accepted practice by attorneys."
Although this decision came in the context of a legal malpractice claim, the Court's analysis should apply more broadly. In negligence actions, many times there are issues about what duty the alleged tortfeasor owes to an alleged victim. This case shows that the duty should be a generally applicable duty, which is not necessarily tied to the particular circumstances regarding the alleged negligence.
Lessons:
An attorney has a duty to exercise ordinary skill and knowledge. What this means in a particular set of circumstances is a question of breach, not of duty.
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