Case: 14-13836   Date Filed: 03/02/2015   Page: 1 of 5


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13836
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:13-cv-00472-RBD-GJK


KATHARINE WALTHER BAIN,

                                             Plaintiff,

HOWARD WALTHER,
DOROTHY B. WALTHER,

                                             Plaintiffs – Appellants,

versus

ROBERT MCINTOSH, et al.,

                                             Defendants,

STEVEN KANE,
Esq.,
KANE & KOLTUN,
Attorneys at Law,

                                             Defendants – Appellees.
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                               ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                             ________________________

                                        (March 2, 2015)

Before HULL, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:

       Howard Walther and Dorothy B. Walther (collectively, the Walthers), the

beneficiaries of the James Walther Revocable Life Insurance Trust (the Trust),

appeal the district court’s order granting summary judgment in favor of Steven

Kane, Esq. and Kane and Koltun, Attorneys at Law (collectively, Kane). Kane

served as the attorney for the trustee, Patrick Walther (Trustee).1 The single issue

on appeal is whether, under Florida law, an attorney retained to represent only the

trustee also owes a fiduciary duty to the beneficiaries of the trust. The district

court held an attorney retained to represent the trustee has no such duty. Upon

review, we affirm. 2




       1
        In their initial brief, the Walthers concede no attorney-client relationship arose between
themselves and Kane. Kane was retained solely to represent the Trustee.
       2
          “We review a district court’s grant of summary judgment de novo, applying the same
legal standards that controlled the district court’s decision.” Levinson v. Reliance Standard Life
Ins. Co., 

, 1325 (11th Cir. 2001). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
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       The district court did not err in in granting summary judgment because Kane

owed no fiduciary duty to the Walthers under Florida law.3 The Florida

Legislature has indicated an unwillingness to expand a lawyer’s fiduciary duties to

a person other than the trustee. Pursuant to Florida Statutes § 90.5021(2) (2011),

“only the person or entity acting as a [trustee] is considered a client of the lawyer.”

Furthermore, the Rules Regulating the Florida Bar, which are promulgated by

Florida Supreme Court, narrowly limit a lawyer’s duties to third parties when

serving as the personal representative of an estate. R. Regulating Fla. Bar 4-1.7

cmt. (2014) (“In Florida, the personal representative is the client rather than the

estate or the beneficiaries.”); see also ABA Comm. on Ethics & Prof’l

Responsibility, Formal Op. 94-380 (1994) (“The majority of jurisdictions consider

that a lawyer who represents a fiduciary does not also represent the beneficiaries,

and we understand the Model Rules to reflect this majority view.” (citation

omitted)).

       The Walthers have not identified any contrary legal authority in Florida

establishing a fiduciary relationship between a lawyer representing a trustee and

the beneficiaries of a trust. The Walthers’ reliance on McCormick v. Cox, 

980 (Fla. 3d DCA 2013), is misplaced. In McCormick, the court held the

trustee, who also happened to be a lawyer, breached his fiduciary duty to the

       3
         “[F]ederal courts sitting in diversity jurisdiction must apply substantive state law.”
Bravo v. United States, 

, 1325 (11th Cir. 2009).
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beneficiaries of the trust. 

986–87. The court never decided whether an

attorney representing a trustee owes a fiduciary duty to the beneficiaries. The

trustee and the lawyer were the same person. 

       The Walthers’ citation to In re Estate of Gory, 

(Fla. 4th

DCA 1990), is similarly unconvincing. The court in Gory said, “We have no

quarrel with the view that counsel for the personal representative of an estate owes

fiduciary duties not only to the personal representative but also to the beneficiaries

of the estate.” 

This statement, however, was dicta. The question

before the court was whether the law firm representing the personal representative

of an estate should have been disqualified from representation due to an alleged

conflict of interest with the beneficiaries of the estate. 

The court

held that, even if the law firm owed a fiduciary duty to the personal representative

and the beneficiaries, Florida law did not mandate disqualification because no

attorney-client relationship existed between the law firm and the beneficiaries. 

Gory did not extend an attorney’s fiduciary duty to the beneficiaries of a

trust whenever an attorney agrees to represent a trustee. Accordingly, we conclude

Kane, as the attorney for the Trustee, owed no fiduciary duty to the Walther

beneficiaries.4



       4
        Because the Walthers failed to plainly and prominently argue in their initial brief that
they were intended third-party beneficiaries of the legal services contract between Kane and the
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       For the foregoing reasons, we affirm the district court’s grant of summary

judgment.

       AFFIRMED.




Trustee, they have abandoned this argument. United States v. Jernigan, 

, 1283 n.8
(11th Cir. 2003).
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