Monday, March 11, 2013

Beneficiary May Sue Attorney For Malpractice

The New Mexico Supreme Court held that a viable action exists against an attorney for a personal representative on behalf of a statutory beneficiary who was not a client.

The attorney's client injured in an auto accident. Her daughter and granddaughter were killed in the accident and the client was appointed personal repesentative for their estates. 

The attorney represented the client as an individual and as personal repesentative.

The other statutory beneficiary was the client's estranged husband. She claimed he had abandoned the child and should not share in the estate. The attorney had the husband sign a document that "reduced [his] entitlement to proceeds from the wrongful death litigation." 

The husband thought the better of it, hired his own lawyer, and challenged the agreement. The attorney sued to enforce the settlement. The husband then countersued the attorney for malpractice, fraud, colluision and misrepresentation.

The matter was complicated by a potential conflict of interest, the possible contributory negligence of the attorney's client in the fatal accident.

The court here concluded that the Rules of Professional Conduct were relevant to the situation: "The determination of whether [the attorney] conformed to the standard of conduct requirred by the Rules of Professional Conduct will depend on the evidence produced at trial."

The attorney may have breached duties to the husband and cannot be granted summary judgment

...we conclude that the adversarial exception does not preclude [the husband's] malpractice claim against [the attorney] because there exist genuine issues of material fact regarding whether [the attorney] failed to exercise reasonable skill and care in his representation of...the personal representative, and, if so, whether such failure harmed [the husband]."  

The Court of Appeals' opinion is linked here. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/03/the-new-mexico-supreme-court-held-that-a-viable-action-exists-against-an-attorney-who-represented-a-client-injured-in-an-auto.html

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