dissenting.
I dissent from the majority’s opinion which concludes that summary judgment in favor of defendant attorneys was appropriate merely because no attorney/client relationship existed between the defendants and the plaintiffs and, that therefore, the attorneys had no duty whatsoever to the plaintiffs. I would conclude that an attorney may, under circumstances as pled here, incur liability to non-clients.
Summary judgment is never warranted except on a clear showing that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of establishing the lack of a triable factual issue and all doubts as to the existence of such an issue must be resolved against the moving party. Also, a party against whom summary judgment is sought is entitled to the benefit of all favorable inferences that may be drawn from the facts. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988).
Here, it was undisputed that the attorney-defendants had no attorney/client relationship with the plaintiffs. I, therefore, agree that the malpractice claims were properly decided against the plaintiffs.
However, the plaintiffs also pled a violation of a fiduciary duty, alleging that the attorneys, after full knowledge of the plaintiff’s interest in the proceeds of the wrongful death action and with knowledge that their client would receive the proceeds subject to that interest, advised their client to resist plaintiff’s claims and wrongfully transferred the proceeds to their client.
The Colorado Wrongful Death Statute, 13-21-201 C.R.S. (1987 Repl.Vol. 6A), grants a surviving husband or wife the exclusive right to initiate an action under the statute during the first year after the death of the spouse. However, pursuant to § 13-21-201(2), if such an action is brought by the surviving spouse, “the judgment obtained in said action shall be owned by such persons as are heirs at law of the deceased under the statutes of descent and distribution and shall be divided among such heirs at law in the same manner as real estate is divided according to said statute of descent and distribution.” Therefore, under the facts here, the plaintiffs, owned fifty percent of the proceeds of the wrongful death action.
The plaintiffs pled, and there is evidence in the record to support the allegation, that the defendants in concert with their client wrongfully asserted that the plaintiffs would not be entitled to any portion of the proceeds unless they could prove their net pecuniary loss. There was evidence in the record from which it could be inferred that the defendants advised their clients to resist such payment. Such a position is directly contrary to Colorado law. See Clint v. Stolworthy, 144 Colo. 597, 357 P.2d 649 (1960).
Under the Wrongful Death Statute, a husband or wife who receives the proceeds of a wrongful death action holds such in the nature of a trust for the other owners. The attorney for a trustee has a fiduciary duty to the beneficiaries of that trust even though those beneficiaries are not the at*468torney’s clients. See Weingarten v. Warren, 753 F.Supp. 491 (S.D.N.Y.1990).
Furthermore, an attorney who receives funds which he knows belong to parties other than his client may be held liable for dispersing such funds to his client if he has been put on notice of such wrongful distribution. See Coppock v. Helfer, 515 P.2d 488 (Colo.App.1973) (Not Selected For Official Publication).
To conclude, as the majority does, that attorneys who are in possession of property, which they know is owned by individuals other than their clients, are immune from liability to rightful owners for improper distribution of such property would place attorneys in a unique and preferred status contrary to sound public policy.
I,therefore, would reverse the summary judgment entered in favor of the defendants on the plaintiffs claim of breach of fiduciary duty.