Argoe v. Three Rivers Behavioral Center & Psychiatric Solutions

*406Justice PLEICONES.

I respectfully dissent. In my view, there are genuine issues of material fact which preclude summary judgment here.

I agree that, generally, where an individual who holds a power of attorney hires an attorney, that attorney’s client is the attorney-in-fact and not the principal who executed the power. E.g., Estate of Keatinge v. Biddle, 789 A.2d 1271 (Me.2002). I also agree that, in general, an attorney who acts in good faith with the authority of his client is not liable to a third party for the performance of his professional services. E.g., Gaar v. North Myrtle Beach Realty, Inc., 287 S.C. 525, 339 S.E.2d 887 (Ct.App.1986). However, an attorney may be liable to a third party where he conspires with a client against that third party, see Stiles v. Onorato, 318 S.C. 297, 457 S.E.2d 601 (1995), or where his professional negligence injures a party in privity with his client. Gaar, supra.

In other words, I largely agree with the majority on the applicable law. Where I disagree, however, is with the consequences, at least for the purposes of summary judgment, of respondent’s advice and assistance to Son to exercise his authority as Appellant’s attorney-in-fact to transfer title to the Beaufort Property from Appellant’s name into a trust. Unlike the majority, I am not persuaded that, because at the time the property was transferred to the trust, Son was also the devisee under Appellant’s current will, it can be said that this transfer was, as a matter of law, not a self-gift.6 Until the transfer of title to the trust, Appellant had the right to dispose of the property during her lifetime or to change her testamentary disposition of the Beaufort Property. Once the trust was established, however, she could no longer dispose of this property during her lifetime or in her will.7

In my opinion, the evidence here is sufficient to withstand respondent’s motion for summary judgment on appellant’s *407claims of legal malpractice and conflict of interest. I would reverse.

. It appears that the majority and I agree that Son's power of attorney did not contain a provision permitting Son to make a gift to himself. See e.g. Loftis v. Eck, 288 S.C. 154, 341 S.E.2d 641 (Ct.App.1986).

. It appears that the trust has been dissolved and fee simple title to the property returned to Appellant as part of a settlement between her and Husband and Son. In my view, while this fact may affect Appellant’s damages it does not impact Respondent's potential liability.