Pizel v. Zuspann, 63261

• Decision Date: 20 December 1990
• Docket Number: No. 63261,63261
• Citation: 803 P.2d 205,247 Kan. 699
• Parties: Herbert PIZEL, et al., Appellants/Cross-Appellees, v. Eugene P. ZUSPANN, et al., Appellees/Cross-Appellants.
• Court: Kansas Supreme Court

Page 205

803 P.2d 205

247 Kan. 699

Herbert PIZEL, et al., Appellants/Cross-Appellees, v. Eugene P. ZUSPANN, et al., Appellees/Cross-Appellants.

No. 63261.

Supreme Court of Kansas.

Dec. 20, 1990.

Stephen B. Rhudy, of Rhudy & Bradford, Chartered, Lawrence, argued the cause, and was on the briefs, for appellants/cross-appellees.

Mark A. Buck, of Davis, Wright, Unrein, Hummer & McCallister, Topeka, argued the cause, and was on the brief, for appellee/cross-appellant B.E. Whalen.

Michael E. Francis, of Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, argued the cause, and was on the brief, for appellee/cross-appellant Eugene P. Zuspann.

MODIFICATION OF OPINION

The opinion of the court was delivered by ALLEGRUCCI, Justice:

This is a legal malpractice action against the defendants, attorneys Eugene P. Zuspann and B.E. Whalen. In our original opinion, we reversed the entry of summary judgment in favor of defendant Zuspann and granted a new trial. Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42 (1990). On August 1, 1990, defendants Zuspann and Whalen filed a motion for rehearing and clarification pursuant to Supreme Court Rule 7.06 (1990 Kan.Ct.R.Annot. 37).

The defendants' motion addresses the italicized portion of the following language in Pizel v. Zuspann, 247 Kan. at 61, 795 P.2d 42:

"We do not agree with the trial court that Knight is analogous to the present case, nor do we find it controlling. As appellants correctly note, this case is distinguishable from Knight v. Myers [12 Kan.App.2d 469, 748 P.2d 896 (1988) ] because, to carry out the terms and conditions of his employment during his representation of Charles, Zuspann had a continuing duty to assure that Charles' intent to pass the land to his nephews was realized. Zuspann's alleged failure to adequately advise Charles of the steps needed to effectuate the trust constituted a special obligation that was continuous in nature and that resulted in injury to Pizel and his intended third-party beneficiaries."

Appellees Zuspann and Whalen argue that this language suggests an attorney has a continuing duty to assure the client's intentions are carried out with no indication of any event that would end this duty. Appellees argue that the language used by the court went further than it intended because the opinion indicates that attorneys have a perpetual obligation to review each inter vivos revocable trust indenture, to contact the trustees or settlors, and to periodically check to assure the trusts are in operation according to the settlors' wishes.

Appellees point out that, here, Herb Pizel was never intended to benefit from Charles' will or trust as those documents were drafted by Zuspann but, instead, became a beneficiary only after the codicil and amendment to the trust were drafted by Whalen. According to appellees, an attorney's duty cannot extend into perpetuity. Attorneys ought not to be bound to assure their clients' intentions but, instead, should be required to perform the task contracted for in a reasonably prudent manner. As an example of the problems created by the court's language, appellees argue that if an attorney is hired to file an appellate brief and argue the case but does not win, a cause of action could be stated for malpractice because the client surely intended that the attorney win the case.

The Kansas Bar Association (KBA) filed an amicus curiae brief addressing this issue. The KBA asks this court to reconsider the use of the above-quoted language and to either delete it or, in the alternative, modify and limit it to clarify that this language applies to the unique facts and circumstances of this case.

The KBA points to problems with the use of the term "assure," which means to pledge or promise, to guarantee, to make sure, to ensure. Using "assure" indicates that an attorney guarantees or ensures that a client's intent will be realized. The Model Rules of Professional Conduct, Supreme Court Rule 226 (1990 Kan.Ct.R. Annot. 210), as adopted in Kansas, prohibit an attorney from guaranteeing the outcome of his or her representation. See MRPC Rule 7.1(b) (1990 Kan.Ct.R.Annot. 281).

Stating that it is not expressing an opinion about the nature or extent of liability of either defendant, the KBA notes that the court indicates Zuspann continued to represent Charles after execution of the trust in May 1962 until Whalen began representing Charles in the early 1970s. According to the KBA, the language used by the court regarding the ...