A California appeals court rules that a successor conservator can sue the previous conservator's attorneys for legal malpractice, and that the conservator's claim isn't barred because of the previous conservator's malfeasance. Stine v. Dell'Osso (Cal. Ct. App., 1st App. Dist., No. A137679, Oct. 17, 2014).
David Davis hired attorney Monica Dell’Osso and the law firm of Burnham Brown, APC, to represent him in obtaining conservatorship of his mother. In Mr. Davis's conservatorship petition, he claimed that all his mother's assets were in a trust, when there were actually several assets in her name. After Mr. Davis was named conservator, he continued to consult with the attorneys. During their representation, the attorneys knew that Mr. Davis had control of his mother's assets, but did not inform the court. Mr. Davis appropriated more than $1 million in assets. The court removed Mr. Davis as conservator and appointed Joanne Stine.
Ms. Stine sued the attorneys for legal malpractice in connection with their representation of Mr. Davis as conservator. The attorneys argued that because they had an attorney-client relationship with Mr. Davis, they did not owe a duty of care to Ms. Stine. They further argued that Ms. Stine, as successor conservator, is subject to any defense that could be used against Mr. Davis, so Ms. Stine is barred from a legal malpractice claim due to unclean hands. The trial court dismissed Ms. Stine's claim against the attorneys, and Ms. Stine appealed.
The California Court of Appeals reverses, holding that Ms. Stine may proceed with her case against the attorneys. The court rules that a successor fiduciary holds all the powers of the predecessor, including the power to assert attorney-client privilege. In addition, the court holds that the fact that Ms. Stine assumed Mr. Davis's powers does not mean Ms. Stine assumed Mr. Davis's personal limitations or liabilities. According to the court, Mr. Davis alone is responsible for his wrongful acts as fiduciary.
For the full text of this decision, go to: https://www.courts.ca.gov/opinions/documents/A137679.PDF
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