Agent's Attorney Can Have Attorney-Client Relationship With Principal

The Maine Supreme Judicial Court rules that under certain circumstances an attorney representing an agent under a power of attorney could have an attorney-client relationship with the principal. Estate of Keatinge v. Biddle (Me. Sup. Jud. Ct., Fed-01-338, Feb. 8, 2002).

In November 1997, Kent Keatinge engaged Elizabeth Biddle, an attorney with Strout & Payson, P.A., to draft a power of attorney to give Kent authority to act for his father, Murray Keatinge. This was replaced in March 1998 by a durable power of attorney, drafted by another attorney and signed by Murray, but giving Kent the same power. Pursuant to the power, Ms. Biddle subsequently did legal work pertaining to the sale of one of Murray's properties. One month after the sale, Ms. Biddle and her firm brought suit against Murray on behalf of Kent concerning Murray''s alleged failure to fund a trust for Kent''s benefit. The matter was settled, but Murray then brought a lawsuit against Ms. Biddle and Strout & Payson, alleging that in suing him they breached an attorney-client relationship. Murray died during the proceedings. The jury awarded his estate $660,000 in damages.

The United States District Court for the District of Maine certified a question to the Maine Supreme Judicial Court: Does an attorney's representation of an agent under a power of attorney create an attorney-client relationship between the principal and the agent''s attorney?

The Maine Supreme Judicial Court answers that while representing an agent does not automatically create an attorney-client relationship with the principal, facts may develop in particular cases that could support the finding of such a relationship. The court rules that '[t]here must be some other agreement or arrangement to create the separate attorney-client relationship between the attorney and the grantor. To hold otherwise would leave the attorney hired to represent the holder of a power of attorney in the untenable position of being subject to ill-defined professional responsibilities and create the reality of conflicting loyalties.'

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