Six Month Discovery Rule Protects EP Attorney in Malpractice Action

By Doug Chalgian on February 27, 2020

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As any estate planning attorney knows, representing both parties to a marriage in the estate planning process is dicey enough; and when it comes to second marriages, especially when all of the children are not from the same union, the potential for representational conflict and other problems increases exponentially.

The facts of this case are classic:

W has one child, marries H who has no children. They have two children together.

H introduces W to EP Lawyer with whom H has a prior relationship. EP Lawyer shows H and W the documents he prepares for W that favor H and the children W has by H (but not the child she brought into the marriage). Unbeknownst to H, before the documents are signed, W works with EP Lawyer to revise the documents to provide only for the children (including the child that she brought into the marriage) to the exclusion of H.

When W dies, H sues EP lawyer for malpractice, silent fraud and breach of fiduciary duty.

The trial court dismissed the malpractice case against the EP Lawyer because it found that H knew or should have known about the possible malpractice more than six months prior to the time he filed his complaint (MCL 600.5838b). Further, the trial court concluded that the silent fraud and breach of fiduciary duty claims were subsumed by the malpractice action. The result is that all of the causes of action were summarily dismissed. In this unpublished opinion, the COA affirms these outcomes.

To read Spiro Voutsaras v Arlyn J. Bossenbrook click on the name.

While the case disappoints in that it fails to get to the meaty issues involved in conflicted representations, and fails to even clarify whether the EP Lawyer did or did not represent H or owe him any duty; there are, notwithstanding, some interesting discussions and summaries of the law in this 7 page opinion that make it a worthwhile read for those who regularly draft estate planning documents. These include: a discussion about when representation ends in the context of estate planning for the purposes of calculating the six month discovery rule, and what types of activities may or may not cause it to be extended; a curious footnote discussion about discovery of attorney files and work product; as well as good summary of the law related to analyzing when one type of action is subsumed by another, and specifically in the context of suits for legal malpractice.

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mm By: Doug Chalgian
Doug Chalgian

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