## Facts

- Lillian E. Styer was an incompetent elderly woman whose estate was valued at about $1.3 million.
- Herbert J. Schwager, an investment adviser, was appointed guardian/conservator of Styer’s estate with legal assistance from attorney Fred Fickett and his firm.
- Over roughly three years, Schwager misappropriated and converted estate funds and made improper investments for his own benefit.
- Schwager was removed, and the guardianship court later surcharged him $378,789.62 for losses caused by his misconduct.
- Dean C. Christoffel, as successor conservator, sued Schwager and also sued Fickett and his firm for negligence, alleging the attorneys failed to discover and prevent the ongoing misuse of ward assets.

## Issues

1. Whether an attorney representing a guardian/conservator can owe a duty of care to the ward (a non-client) permitting a negligence claim despite lack of privity and absence of fraud or collusion.
2. Whether the attorneys were entitled to summary judgment on the theory that no duty to the ward exists as a matter of law.

## Decision

- The Arizona Court of Appeals granted special action review and upheld the trial court’s denial of summary judgment.
- The court refused to adopt an absolute privity bar and declined to hold, as a matter of law, that the guardian’s attorney owed no duty to the ward.
- The court held that an attorney for a guardian/conservator may owe a duty of care to the ward where the attorney’s negligence foreseeably harms the ward’s estate.
- The ruling addressed only duty and the propriety of summary judgment; it did not decide whether the attorneys were negligent or caused damages.

## Legal Principles

- Although a traditional rule limits attorney liability to clients absent fraud or collusion, duty to non-clients may exist where policy considerations and foreseeability support it.
- In determining duty to a non-client, courts may consider factors including: intent to affect the plaintiff, foreseeability of harm, certainty of injury, closeness of connection between conduct and injury, and prevention of future harm.
- Guardianship representation is directed to preserving and conserving the ward’s property for the ward’s benefit; the ward is an intended beneficiary of the fiduciary arrangement.
- Because harm to the ward from mismanagement or misappropriation is foreseeable in the guardianship setting, the guardian’s attorney may have a legally cognizable obligation of reasonable care to the ward.

## Conclusion

The court allowed a conservator to pursue a negligence claim against a former guardian’s attorneys, holding that lack of privity and absence of fraud or collusion do not categorically preclude a duty of care to the ward when foreseeable harm to the ward’s estate is alleged.


Fickett v. Superior Court, 558 P.2d 988 (Ariz. Ct. App. 1976)