A successor personal representative may sue the lawyer who advised the prior personal representative, even though the successor never had an attorney-client relationship with that lawyer. That is the holding of Bookman v. Davidson, 136 So. 3d 1276 (Fla. 1st DCA 2014), a case of first impression in Florida decided on May 5, 2014 (Case No. 1D13-3086).
The First District reversed a summary judgment that had ended the estate’s malpractice claim for lack of privity. The court did not reach for the common-law privity rule. It read the Florida Probate Code, which gives the successor the same powers and duties as the original fiduciary.
Facts
Deborah E. Irby died, and Dana Ford was appointed personal representative of her estate in January 2007. Ford retained attorney Dale Davidson to advise her on her administrative duties. The estate paid him roughly $195,000 in fees during her tenure.
Ford resigned in February 2010, and Alan B. Bookman was appointed successor personal representative. Bookman then sued both Ford and Davidson in the Walton County Circuit Court. Against Ford, he alleged breaches of fiduciary duty and sought the return of her fees. Against Davidson, he alleged legal malpractice, claiming the attorney improperly advised Ford to disclaim or transfer estate assets that could have been used to pay creditors. A separate count sought disgorgement of part of Davidson’s fees as excessive.
Trial Court Ruling
Davidson moved for summary judgment on the malpractice count. He argued that his only client was Ford, so Bookman lacked privity and could not sue. He also sought dismissal of the disgorgement count, contending that review of attorney compensation belongs in the probate proceeding under section 733.6175(2), Florida Statutes.
The trial court agreed on both points. It entered summary judgment on the malpractice claim for lack of standing and dismissed the disgorgement claim as better suited to the pending probate case.
Issue: Can a Successor Personal Representative Sue the Prior Attorney?
The question was whether a successor personal representative may bring a legal malpractice action against an attorney hired by his or her predecessor, where the successor and the attorney were never in privity.
Holding
Yes. The First District reversed the summary judgment and remanded the malpractice claim for further proceedings. It affirmed the reasoning behind the dismissal of the fee claim but held that the circuit court was not barred from hearing it. The disposition was affirmed in part, reversed in part, and remanded. Judge Swanson wrote for the panel, with Judges Benton and Osterhaus concurring.
Rationale
The court decided the standing question on the plain language of the Probate Code rather than on privity. Three provisions carried the analysis:
- Section 733.602(1) makes the personal representative a fiduciary who must settle and distribute the estate expeditiously and in the best interests of those interested in it.
- Section 733.612(19) and (20) authorize the fiduciary to employ attorneys and to prosecute or defend lawsuits for the protection of the estate.
- Section 733.614 provides that a successor personal representative has the same power and duty as the original to complete the administration of the estate.
Read together, those sections meant that every power Ford held passed to Bookman on his appointment. Ford could have sued Davidson for negligent advice that harmed the estate. Bookman, as successor personal representative, stepped into her shoes and acquired that same right. The court also relied on Sessions v. Willard, 172 So. 242 (Fla. 1937), for the long-standing duty to pursue estate assets in the hands of a former fiduciary or that person’s agents.
On the fee claim, the court agreed that section 733.6175(2) makes compensation review part of the estate administration proceeding. But all circuit judges share the same subject matter jurisdiction, including over the settlement of estates under section 26.012(2)(b). Nothing in section 733.6175(2) stripped the civil division of authority to hear the disgorgement count. On remand, the trial court had discretion to try the related claims together.
Practice Points for a Successor Personal Representative
- Audit the prior administration early. A malpractice claim against former counsel is an estate asset. A successor personal representative who ignores a viable claim risks a breach of his or her own fiduciary duty.
- Standing is not the merits. Bookman opens the courthouse door. The estate must still prove duty, breach, causation, and damages, and must file within the limitations period.
- Frame the claim as the estate’s. The theory that worked was statutory succession to the predecessor’s rights, not a third-party beneficiary exception to privity.
- Put fee challenges in the probate file. Section 733.6175 is the primary vehicle for reviewing attorney and fiduciary compensation. If related civil claims are pending, ask the court to coordinate or jointly try them.
- Counsel to fiduciaries should document advice. Exposure does not end when the client resigns. Advice on disclaimers, transfers, and creditor payments should be in writing.
Why This Matters
Estates change hands more often than people expect. Fiduciaries resign, are removed, or die. Bookman confirms that accountability follows the estate, not the individual who happened to sign the engagement letter. A successor personal representative can recover losses caused by negligent legal advice, and beneficiaries and creditors are not left without a remedy simply because the person in charge changed.
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Read the Opinion
Bookman v. Davidson, No. 1D13-3086 (Fla. 1st DCA May 5, 2014) is available from the First District Court of Appeal’s opinions archive. To discuss a probate or estate litigation matter, contact Cox Law, PLLC or call 813-685-8600.
This post is a general summary of a published appellate decision for informational purposes. It is not legal advice and does not create an attorney-client relationship. Later decisions or statutory amendments may affect the rules discussed here.