Appeal from the Superior Court of the District of Columbia; (Hon. George H. Goodrich, Trial Judge)
Before Schwelb, Farrell, and King, Associate Judges.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge : Appellant Brenda L. Hopkins, attorney for the personal representative of the estate of Irene Akins, who died intestate, was found liable in a non-jury trial for breach of contract and legal malpractice to the decedent's surviving spouse, appellee Robert Akins, Sr., for the sum of appellee's intestate share of the estate. *fn1 We hold that (1) no contract existed between Hopkins and Akins, Sr., and (2) Hopkins owed no duty of reasonable care to Akins, Sr. arising from her attorney-client relationship with the personal representative. We therefore reverse and remand with directions to enter judgment for appellants.
Irene Akins died intestate, survived by her husband and her son Robert Akins, Jr., who was appointed personal representative of her estate. *fn2 Under the District's intestacy statute, Akins, Jr. was entitled to receive two thirds of the mother's estate and Akins, Sr. one third (plus the family allowance). Mrs. Akins' home was the major asset of the estate and was eventually sold by the personal representative, yielding net proceeds of $46,315.32. In October 1987, Akins, Jr. deposited the proceeds in the First American Bank in the name of "Estate of Irene Jackson Akins, by Robert Akins, Jr., personal representative." By December 1988, he had personally withdrawn all of the funds in the account, depriving his father of his intestate share.
Akins, Sr. brought suit against his son, against whom a default judgment was later entered, and the son's attorney, Brenda L. Hopkins, and Hopkins' law partner, Brett Murchison. Only Hopkins and Murchison have appealed. The complaint against them alleged breach of contract, breach of a surety agreement, "negligent failure to control estate assets," and "negligent failure to stop wrongful conversion." The latter two counts, as the parties agreed below, were "essentially malpractice." At trial Akins, Sr. rested primarily on his previously filed "Statement Of Facts Not In Dispute," which the court admitted as an exhibit at trial without objection. Appellant Hopkins testified in her own behalf.
Hopkins had been retained by Akins, Jr. to initiate a probate proceeding in Superior Court upon his mother's death. Upon her petition, the son was named personal representative of the estate. At about this time, Akins, Sr. retained attorney Q. Russell Hatchl to represent him as an heir. On March 30, 1987, Hopkins wrote Hatchl a letter enclosing a document entitled "Consent and Waiver of Additional Bond" which requested Akins, Sr.'s consent to the sale of the decedent's home and waiver of an increased bond to cover the proceeds of the sale. *fn3 Hatchl informed Hopkins by telephone that consent and waiver of the bond would not be given unless Hopkins gave written assurance that she would insure proper disbursement of the proceeds. Hatchl "suggested" that Hopkins be a required signatory on any account containing the proceeds. Hopkins agreed to memorialize this arrangement, and did so in a letter to Hatchl of April 20, 1987, stating:
This letter is written as a result of our telephone conversation of this date concerning the sale of real property owned by the [estate of Irene Akins]. You may be assured that all proceeds from the sale shall be under joint control. Any estate account established will require both my signature and that of the personal representative. Assuming this will satisfy your client, please forward the consent to the sale at your earliest convenience.
After receiving this letter, Akins, Sr. consented to the sale of the house for not less than $58,000 *fn4 and waived the requirement of an additional bond.
When Hopkins and Akins, Jr. attempted to open a joint account at First American Bank, they were told that the bank did not permit that arrangement, so they opened an account there in the estate's name with the understanding that the funds would be placed in a joint account later. Hopkins testified that she retained the bank book and opening checkbook for the account, containing only a few checks, and initially prepared and forwarded checks bearing Akins, Jr.'s signature to cover expenses of administration. Hopkins also approved a series of checks for rent payable to the purchaser of the decedent's home, where Akins, Jr. had been forced to hold over as a tenant, and a check for a security deposit on a home the son intended to rent with an option to buy. Hopkins explained that "because client was not employed, had no source of employment, a wife and two children and was entitled to two-thirds of this estate, had no problems with the advance distribution to him for those purposes." Thereafter, in January 1988, Hopkins discovered that Akins, Jr. was making withdrawals without her knowledge.
Eventually Hopkins became convinced that Akins, Jr. did not intend to move the proceeds to a joint account and, indeed, planned to withdraw more money from the account than he was entitled to under the statute. She contacted Nicholas Ward, a former Register of Wills, who advised her to have the account frozen or else to inform the Register of Wills so that Akins, Jr. could be removed as personal representative. As Hopkins was unable to have the account frozen without a court order, she informed the current Register of Wills, Constance Stark (Evans), of the situation in late August 1988. The trial Judge found, however, that after this initial meeting with Stark, Hopkins took no further action in the matter. Before a show cause order could issue removing Akins, Jr. as personal representative, he withdrew the remaining funds from the account. *fn5
In a memorandum opinion and order, the trial Judge found Akins, Jr., Hopkins and her law partner jointly and severally liable for the amount Akins, Sr. would have received from the estate but for the diversion of assets. Akins, Jr.'s liability was based on his conversion of the money; the attorneys' liability was based on breach of contract and legal malpractice. The Judge found that Hopkins had personally "agreed in writing . . . to protect the Estate funds by placing them into a joint account with as signatory. As consideration for Hopkins' promise, Robert Akins, Sr. relinquished his right to require the personal representative to post a bond to protect the estate assets." Akins, Sr., the Judge found, was either the party with whom Hopkins contracted or, alternatively, a third party beneficiary of a contract between the two attorneys, Hopkins and Hatchl.
The Judge further concluded that, aside from the contract, Hopkins, as attorney for the personal representative, owed a duty of reasonable care not only to him but also to the beneficiaries of the estate. *fn6 Because Hopkins "failed to take any action" to avert the misconduct by Akins, Jr., she had therefore "breached her professional ...