Successor Personal Representative Has Standing to Sue Attorney for Prior Personal Representative for Malpractice

Bookman_v._Davidson,  136 So. 3d 1276 (Fla. 1st DCA 2014). 

This case presented an issue of first impression for the Florida appellate court, specifically, whether a successor personal representative of an estate may bring a cause of action for legal malpractice against an attorney hired by his predecessor (the initial personal representative) to provide services necessary to the administration of the estate. The answer — yes.

In the case Dana Ford was appointed as personal representative of the Florida estate of Deborah Irby.  Ford hired Attorney Davidson to advise Ford concerning Ford’s administrative duties as personal representative until shortly before Ford resigned in February 12, 2010.  During the course of Davidson’s representation of Ford, Davidson was paid $195,000 in attorney’s fees from the estate.

On February 17, 2010, Bookman was appointed successor personal representative. Bookman filed a civil suit against Ford and Davidson, alleging that Ford improperly disclaimed or transferred out of the estate certain assets that could have been used to pay creditors. 

Bookman sought damages from Davidson and Ford, and alleged that Davidson had improperly advised Ford. Ford answered and filed a crossclaim against Davidson for legal malpractice.

Davidson moved for summary judgment against Bookman, claiming that Bookman lacked standing to sue Davidson for malpractice.  Davidson argued that a successor personal representative is not in privity with the original personal representative’s attorney, privity being an essential element of a legal malpractice claim under Florida law.  Davidson also moved to dismiss Bookman’s count for disgorgement of the attorneys’ fees paid to Davidson, urging that the probate court should review the compensation of professionals involved with the administration of the estate.

The trial court agreed with Davidson, finding that Bookman had no standing to sue Davidson for malpractice, and that any disgorgement claim would have to proceed in Florida probate court (remember, Bookman sued Davidson in general civil court, not in the probate court).

The Florida appellate court disagreed, finding that a successor personal representative does have standing to sue an attorney for the initial personal representative for legal malpractice.  The Florida appellate court based its decision on the plain language of the Florida Probate Code. 

Section 733.602 sets forth the general duties of a personal representative and states that the personal representative: 

is a fiduciary who shall observe the standards of care applicable to trustees… [and] is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and  [the Florida Probate Code] as expeditiously and efficiently as is consistent with the best interests of the estate.

Section 733.612(19) permits the personal representative to “employ persons, including, but not limited to, attorneys…”

733.614 addresses the powers and duties of a successor personal representative and states:

A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate as expeditiously as possible, but shall not exercise any power made personal to the personal representative named in the will without court approval. 

Therefore, the powers granted to the initial personal representative flow to the successor personal representative.  Because Ford had standing to bring suit against Davidson for malpractice, Bookman had standing to sue Davidson for malpractice.

The other point on appeal was the trial court’s decision to dismiss Bookman’s count for disgorgement of attorney’s fees against Davidson.  The trial court ruled that it did not have jurisdiction hear the claim.  While the trial court was within its discretion to hold that it was more appropriate for the disgorgement claim to be heard in the probate court, the Florida appellate court ruled that the trial court did have jurisdiction to hear the claim, as a circuit court of general jurisdiction.  

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

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Jeffrey H. Skatoff, Esq.

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