Family Feud leads to Privity Lesson

A somewhat bizarre family feud presents an interesting evaluation of the general requirement of privity in order to maintain a legal malpractice claim. Consider the circumstances of when an attorney is appointed by the court to administer an estate. Who is the client? A Kansas appellate court examined this situation in Schroeder v. Brewer, 2017 Kan. App. Unpub. LEXIS 101 (Kan. Ct. App. Feb. 17, 2017) which addresses whether an attorney may be held liable for legal malpractice while representing an Estate “against” the beneficiaries of the estate.

Following the death of their father, Son and Daughter conveyed their interests in the family farm to Mother. Thereafter, Mother deeded the farm back to Daughter in exchange for Daughter’s promise to take care of Mother for life. Son objected and sued Daughter and Mother for $700,000. Unfortunately, Mother died while the lawsuit was pending so Estate was substituted as a party into the pending action between the siblings. The attorney (soon to be Defendant) was appointed as the administrator and attorney for Mother’s estate.

The parties engaged in protracted settlement discussions and eventually reached a settlement agreement. Soon thereafter, the family farm sold at auction. However, Son alleged that Attorney’s conduct during the settlement discussions stalled the proceedings and led to Son incurring damages because he couldn’t sell the property on his own to a different set of buyers. Son alleged that Attorney breached obligations to Son because Son was an heir to the Estate. The trial court granted summary judgment, basing its decision in part on the fact that there was no attorney-client relationship entered into between Son and Attorney. Son appealed.

The Court of Appeals of Kansas affirmed.  In doing so, it noted that only the Estate was Attorney’s client. Estate proceedings are fundamentally adversarial, and an administrator’s obligations are to act in the best interests of the estate, with no obligation flowing to a particular heir of the estate itself.  In any event, the Court found that Son was not merely an heir—he was clearly an adversary of the Estate because he sued Daughter and Mother. Because an estate’s attorney cannot be an advocate for a beneficiary against the Estate, the Court found that the lower court was correct that no such malpractice claim could be maintained against Attorney by Son under these circumstances.


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