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Fickett v. Superior Court of Pima County

    Brief Fact Summary.

    When a guardian, whom Fickett (Defendant) represented, misappropriated the guardianship estate by converting the funds to his own use, a successor conservator (Plaintiff) sued Fickett (Defendant) for negligently failing to discover the misappropriation scheme

    Synopsis of Rule of Law.

    An attorney who undertakes the representation of the guardian of an incompetent assumes a relationship with both the guardian and the ward

    Facts.

    Fickett (Defendant), lawyer for the former guardian of an incompetent, elderly woman, did not know his client had schemed to misappropriate the guardianship estate by converting the funds to his own use.  When a successor conservator was able to recover only a small amount from the former guardian or third parties, it brought this proceeding against Fickett (Defendant) and the law firm that had represented the former guardian for negligently failing to discover the guardian’s misappropriation.  Fickett (Defendant) moved for summary judgment, contending that, as a matter of law, since there was no fraud or collusion between the guardian and himself, he was not liable for his client’s misappropriation of the guardianship estate.  The Superior Court denied the motion.  Defendant challenged the ruling by this special action.

    Issue.

    Does an attorney who undertakes the representation of the guardian of an incompetent assume a relationship with both the guardian and the ward?

    Held.

    (Howard, C.J.)  Yes.  An attorney who undertakes the representation of the guardian of an incompetent assumes a relationship with both the guardian and the ward.  As a matter of policy, liability to a third person involves the balancing of various factors, among which are the foreseeability of harm to the plaintiff, the degree of certainty that he suffered injury, the closeness of the connection between the defendant’s conduct and the injuries suffeed, and the policy of preventing future harm.  The public policy of this state permits the imposition of a duty under the circumstances represented here.  If Fickett (Defendant) knew or should have known that the guardian was acting against his ward’s interest, the possibility of frustrating the whole purpose of the guardianship became foreseeable, as well as the possibility of injury to the ward.  Therefore, the ruling denying Fickett’s (Defendant) motion for summary judgment is upheld.

    Discussion.

    For many years the general rule 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.  The present conservator (Plaintiff) agreed that no fraud or collusion existed.  However, he argued that one could not say as a matter of law that Fickett (Defendant) owed no duty to the ward, and the court agreed.


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