The Good and Ugly

Two new unpublished COA opinions worth note. Let’s start with the ugly.

In Perry v Cotton, June 16, 2015, the COA repeatedly states that the attorney for the Personal Representative represents the “estate.”  Although the opinion fails to clearly state the facts of the case, it appears that the P.R. claimed proceeds to a life insurance policy in which the estate or another individual also had an interest.  The harmed individual sued the attorney for the P.R. for malpractice.  The trial court dismissed the action on summary disposition for lack of privity.  The Court of Appeals reinstated the action.  While it may be true, as the COA suggests, that the attorney for the P.R. had a conflict and that the P.R. should have retained another lawyer to represent her in her individual capacity, the result remains based on the inaccurate proposition that the attorney for the estate represents the estate and not the P.R. individually.

This issue has been around awhile.  In reaching its conclusion the COA relies on Steinway v Bolden, 185 Mich App 234, 237-238; 460 NW2d 306 (1990).  What it does not recognize is that Steinway was a hot topic in 1990, so hot in fact that the Court Rules were changed in response.  The express purpose of changing MCR 5.117(1) was to clarify that the attorney for the estate represents the fiduciary and not the estate.  Whether this important fact was raised by the litigants is unknown.  In any event, the COA is mistaken in this conclusion and this is not the first time they have made this error. Perhaps the probate section of the state bar will become engaged and either seek clarification from the COA in a revised opinion, or for leave to appeal.  We’ll see.

The good is from the Estate of Cliffman, June 9, 2015.  In Cliffman the attorney for the P.R. referred a wrongful death action to a personal injury attorney and received a referral fee for doing so.  The COA held that the attorney for the P.R. who received the referral fee did not violate the rules of professional conduct by doing so.