Blogs from October, 2009


Fourth District confirms that attorneys may be liable to the intended beneficiary of legal services.

Florida courts traditionally limit attorney liability for negligence in the performance of professional duties to clients with whom the attorney shares contractual privity. An exception is recognized, however, where it can be demonstrated that the apparent intent of the client in engaging the services of the lawyer was to benefit another.  For the beneficiary of the last will and testament to state a viable cause of action, the testamentary intent as expressed in the will must be frustrated by the attorney’s negligence. Rosenstone v. Satchell, 560 So.2d 1229 (Fla. 4th DCA 1990).  Thus, an attorney may be held liable for breach of his duties to one who engages his services or to one who he knows is the intended beneficiary of his services.  Last week, the Fourth District relied on this precedent in forming its opinion reversing a Broward County probate judge in Wells v. Wells 34 Fla.L.Weekly D1897b (Fla.4th DCA, September 16, 2009). 

Wells involved a complaint filed by a pro se litigant, Cheryl Wells, against her sister (Cia Wells), her sister’s husband, an investment advisor and broker, Eugene Kennedy (a licensed Florida attorney), John Knox Village (a residential complex), Kevin Kinghorm (an Arizona attorney), and an investigator appointed by the State of Arizona to investigate for the guardianship proceedings involving Cherly’s mother, Elaine Wells.

According to Cheryl, her sister Cia and attorney Eugene Kennedy knew that her mother had Alzheimer’s and yet influence her mother to remove Cheryl as co-trustee and to revoke Cheryl’s Durable Power of Attorney.  In doing so, Cheryl alleged, Cia and Kennedy breached their fiduciary duty.

After dismissing three complaints about vagueness and failing to state a cause of action, Broward Probate Judge Mark Speiser dismissed Cheryl’s case with prejudice.  On appeal, however, the Fourth District remanded the case and made a point of stating that there were grounds for Cheryl to pursue liability against the attorney even though Cheryl was not a client.

“We…reverse the trial court’s dismissal with prejudice of Cheryl’s claims of breach of fiduciary duty and conversion.  In the event that Cheryl successfully obtains declaratory relief on remand and is restored as co-trustee, she may then bring these causes of action against defendants, Cia Wells and Eugene Kennedy.”

This case appears to extend the liability of attorneys.  In my view, it is based on the same reasoning pronounced by the Fourth District in Gallo v. Brady 925 So.2d 363 (Fla.4th DCA 2006) where the court allowed extrinsic evidence relating to a client’s intent in establishing a trust to avoid paying estate taxes to be admitted in a legal malpractice action brought by a personal representative of the client’s estate, as opposed to an intended beneficiary, against the attorney and law firm involved in setting up the charitable remainder trust as part of the client’s estate planning, which alleges that the attorney’s negligence in creating the trust resulted in increased estate taxes.  In Wells, the Court seems to suggest that a trustee stands in the same position as the personal representative in Gallo and can seek redress for an attorney’s malfeasance after the death of the attorney’s client.


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