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Keywords

lawsuitattorneynegligencemotionsummary judgmentmotion for summary judgment

defendantattorneymotionsummary judgmentrespondentmotion for summary judgment

Related Cases

Fickett v. Superior Court of Pima County, 27 Ariz.App. 793, 558 P.2d 988

Facts

The conservator, previously the guardian of an incompetent's estate, filed a lawsuit against the former guardian and his attorneys, claiming that the attorney, Fickett, was negligent in not recognizing the guardian's scheme to misappropriate and convert estate funds. The conservator acknowledged that there was no fraud or collusion between the guardian and the attorney but argued that the attorney still owed a duty to the ward. The attorneys filed for summary judgment, asserting that they could not be held liable due to the absence of fraud or collusion.

Petitioners are defendants in a pending superior court action filed by the present conservator (formerly guardian) of an incompetent's estate against the former guardian and petitioners, attorneys for the former guardian.

Issue

Did the attorneys owe a duty to the ward, and was there a factual issue regarding their knowledge of the guardian's misconduct that precluded summary judgment?

Rule

An attorney may not be liable to a third party for professional negligence unless there is a legal relationship that creates a duty, which can be determined by various policy factors including foreseeability of harm and the closeness of the connection between the attorney's conduct and the injury suffered.

The general rule for many years has been that an attorney could not be liable to one other than his client in an action arising out of his professional duties, in the absence of fraud or collusion.

Analysis

The court analyzed whether the attorneys had a duty to the ward, concluding that when an attorney represents a guardian, they assume a relationship with both the guardian and the ward. The court emphasized that if the attorneys knew or should have known about the guardian's adverse actions, it was foreseeable that the ward could be harmed, thus establishing a potential duty to the ward.

We are of the opinion that when an attorney undertakes to represent the guardian of an incompetent, he assumes a relationship not only with the guardian but also with the ward.

Conclusion

The court denied the attorneys' motion for summary judgment, affirming that they failed to demonstrate the absence of a legal relationship and duty to the ward. The court also vacated the order denying the motion for requiring admissions of fact, directing further proceedings.

We, therefore, uphold the respondent court's denial of petitioners' motion for summary judgment since they failed to establish the absence of a legal relationship and concomitant duty to the ward.

Who won?

The conservator prevailed in the cross-petition for special action, as the court found that the attorneys had not adequately responded to requests for admissions and failed to establish a lack of duty to the ward.

The court found that the public policy of this state permits the imposition of a duty under the circumstances presented here.

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