Who Is The Client?

In most attorney-client relationships, it is easy to identify the client.  For attorneys who practice estate planning, probate law or probate litigation, among other related areas, the answer is somewhat less clear.  Namely, is the client the fiduciary (i.e. the personal representative), or is the client the estate and the beneficiaries of the estate?

A small number of decisions prior to the enactment of the Estates and Protected Individuals Code (“EPIC”), held that the client was the estate.  See Steinway v. Johnson, 185 Mich. App. 234 (1990).  Those few cases, including Steinway, were based on the language of the Revised Probate Code (“RPC”), the controlling statutes at the time, which included the proposition that “a fiduciary of an estate may employ counsel to perform necessary legal services in behalf of the estate….”  Estate of Maki v. Coen, 318 Mich. App. 532, 541 (2017). at 541.

However, years later, the court in Maki reached a different conclusion on a similar issue and partially distinguished Steinway.  Id. at 541-42.  The court in Maki was addressing conservatorships and relied on EPIC, which replaced the RPC in the year 2000.  The court in Maki relied upon EPIC’s language that clearly indicates that a conservator may hire an attorney to assist the conservator.  Id.  The Maki court also relied on MCR 5.117(A) which provides that “an attorney filing appearance on behalf of a fiduciary shall represent the fiduciary.”  Id. (citing MCR 5.117(A)).

EPIC’s provision relating to what conservators may do with respect to retaining counsel states that conservators may:

Employ an attorney to perform necessary legal services or to advise or assist the conservator in the performance of the conservator’s administrative duties, even if the attorney is associated with the conservator, and act without independent investigation upon the attorney’s recommendation. An attorney employed under this subdivision shall receive reasonable compensation for his or her employment.

MCL 700.5423(2)(z).  EPIC’s language with regard to a personal representative is nearly identical to the language regarding conservators and states personal representatives may:

Employ an attorney to perform necessary legal services or to advise or assist the personal representative in the performance of the personal representative’s administrative duties, even if the attorney is associated with the personal representative, and act without independent investigation upon the attorney’s recommendation. An attorney employed under this subdivision shall receive reasonable compensation for his or her employment.

MCL 700.3715(1)(w).  Given the similarity in the personal representative and conservator provisions of EPIC, it would be fairly safe to assume that the reasoning put forth in Maki would apply personal representative situations in addition to conservatorship situations.  Thus, the personal representative or other fiduciary is likely the client, and not the estate and its beneficiaries—at least until the courts directly address that issue.

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