Whether the breach of fiduciary duty claim was subsumed in the legal malpractice claim; Aldred v O’Hara-Bruce; Prentis Family Found v Barbara Ann Karmanos Cancer Inst; Duty to self-report; Reliance on the Michigan Rules of Professional Conduct (MRPC) 1.4 & 1.7; Statute of repose; MCL 600.5838b

Holding that plaintiffs’ breach of fiduciary duty claim was subsumed by their legal-malpractice claim, the court found that “the trial court properly granted defendants summary disposition of this count under MCR 2.116(C)(7) as it was time-barred by the statute of repose.” The legal malpractice claim was likewise barred by the statute of repose. The complaint included repeated allegations between Counts I (professional negligence/legal malpractice) and III (breach of fiduciary duty) against defendant-Lites, “or very similar allegations slightly reworded. For example, plaintiffs alleged legal malpractice based on the ‘[f]ailure to properly advise and correctly inform Plaintiffs’ regarding the assignment and failure to record the assignment, and the failure to take legal action against” a bank. They “similarly alleged breach of fiduciary duty based on Lites’s failure to disclose the lack of recording ‘and related false explanations in his effort to avoid full disclosure to his clients,’ withholding potential conflict of interest information, and not taking legal action against” the bank. While “one set of facts may give rise to more than one cause of action,” the court found that plaintiffs “failed to plead the distinguishing factor between a claim for legal malpractice and a claim for breach of fiduciary duty—'a more culpable state of mind than the negligence required for malpractice[.]’” They did not “plead anything more than inadequate representation, and relied on the same conduct by Lites that gave rise to the legal-malpractice claim.” While Count III “specifically took issue with Lites’ ongoing communications regarding the failure to disclose and its effect on plaintiffs, [they] did not allege that Lites breached any duty arising outside the attorney-client relationship. Rather, without the attorney-client relationship, Lites would have no duty to disclose the failure to record the assignment, which is the underlying issue of both counts.” The court added that their reliance on the MRPCs further enforced the conclusion that their “fiduciary-duty claim is subsumed by their claim of legal malpractice, and they failed to establish a breach of a separate and distinct legal duty. Moreover, neither” MRPC 1.4 nor 1.7 “stands for the proposition plaintiffs say it does, i.e., that an attorney has a duty to self-report malpractice.” Affirmed.