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A Better Partnership
January 23, 2017

COA holds that an attorney employed by the conservator of an estate represents the conservator, not the estate

An estate has no standing to sue the attorney who represented the estate’s conservator for a breach of the attorney’s professional duty of care, said the Michigan Court of Appeals in Estate of Maki v. Coen, No. 328704. If the attorney owed duties to both the conservator and the estate, it would create a conflict of interest.
Tyler Maki was born in 1994 with a congenital birth defect. Tyler’s family filed a medical malpractice lawsuit on Tyler’s behalf against his medical care providers.  Sommers Schwartz, PC represented Tyler in the action. The parties settled the lawsuit in 1998, and the medical providers agreed to pay an immediate cash settlement and provide Tyler with regular payments from a structured annuity. Tyler’s mother, Mandy Maki-Childs, was his conservator from November 1998 until October 2006. Victor Coen represented Maki-Childs, and allegedly failed to include the structured-settlement income on the annual accounts he prepared for the conservatorship. After Maki-Childs was removed as conservator, Tyler’s new conservator sued Maki-Childs for her failure to account for the structured payments.  John Burns represented the new conservator in that case, which resulted in a judgment against Maki-Childs. Attorney Phoebe Moore replaced Brown as Tyler’s conservator in December 2011.
Tyler’s father, Michael Maki, was appointed plenary guardian over both Tyler and his estate. Maki sued Coen, Sommers Schwartz, Burns, and Moore on behalf of Tyler’s estate, alleging that they owed a professional duty of care to “Tyler, as their client.” The complaint alleged that Coen and Sommers Schwartz violated their duty of care in connection with their representation of Maki-Childs during her conservatorship, and that Burns and Moore should have discovered and pursued Tyler’s claims against Coen and Sommers Schwartz. The trial court ruled that only Maki-Childs had standing to sue Coen and Sommers Schwartz and granted summary judgment in favor of the defendants.
The Court of Appeals affirmed the lower court’s decision. It held that the relevant statute and court rule establish that an attorney hired to perform legal services for a conservator represents the conservator and does not have an attorney-client relationship with the estate. Under MCL 700.5423(2)(z), part of the Estates and Protected Individuals Code (EPIC), a conservator may hire an attorney to assist in performing the conservator’s duties, and the attorney performs legal services for the conservator. The former statute that EPIC replaced, by contrast, provided that a fiduciary of an estate could employ counsel on behalf of the estate. To the court, the replacement of that language with current MCL 700.5423 was conclusive evidence that an attorney hired by the conservator of an estate does not have an attorney-client relationship with the estate.
The Michigan Court Rules confirmed such a reading of the statute. MCR 5.117(A) provides plainly that “[a]n attorney filing an appearance on behalf of a fiduciary shall represent the fiduciary.”
Finally, the court rejected Maki’s argument that even without an attorney-client relationship, the estate could sue in tort because it was a third-party beneficiary of the contract between Coen and Maki-Childs. The attorney’s mere knowledge of a benefit to Tyler’s estate was not enough elevate it to the status of a named third-party beneficiary, and in any event the estate’s complaint never pleaded such status.
Accordingly, the court upheld the trial court’s grant of summary disposition in favor of Coen and Sommers Schwartz. Likewise, Moore and Burns could not sue Coen and Sommers Schwartz because the estate was not the client of Coen and Sommers Schwartz, and thus could not be sued by the estate for malpractice.

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