I concur in part and respectfully dissent in part. I concur with the majority opinion that “the determination of the existence [of a] fiduciary duty is for the court” and not the jury. Nevertheless, under the allegations and undisputed *163facts of this particular case, the Circuit Court’s grant of summary judgment to Petitioners, “that they are not liable to Deborah W. Spence, individually, or the Estate of Floyd D. Spence, Sr. in connection with the congressional life insurance policy or the manner it was paid,” should be affirmed and the Court of Appeals respectfully reversed.
The Respondent/Plaintiffs “SECOND CAUSE OF ACTION (Breach of Fiduciary Duty as to all Defendants)” merely asserts that the “Plaintiff and Defendants ... were in a fiduciary relationship as ... Defendants were counsel for Plaintiff,” from whom, with the Defendant Wilkins, “she sought advice and counsel regarding the estate of her dying husband.” As found by the majority, “Mrs. Spence sought legal counsel and on August 13, 2001, Wingate undertook the representation of Mrs. Spence with regards to the assets of her husband, her inheritance rights, and her rights in his estate.” As noted by the majority, “it is undisputed that the congressional life insurance policy in question was a non-probate asset,” and, further, “[ajlthough Wingate represented the estate, the property in question was not a part of the estate.” The matters of the policy and the estate, ergo, are not related. Rule 407,1.9(a), SCACR.
Moreover, as regards “the congressional life insurance policy in question,” there was no “prior attorney-client relationship,” until “Mrs. Spence sought legal counsel and on August 13, 2001, Wingate undertook the representation of Mrs. Spence with regards to the assets of her husband, her inheritance rights, and her rights in his estate.” (Emphasis supplied). It was only after and “[djuring the course of this representation, Mrs. Spence consulted with Wingate about her husband’s life insurance policy and ‘informed Wingate that [her] husband had named [her] as beneficiary.’ ” Not only was there no confidential prior or “ongoing attorney/client relationship” regarding her husband’s life insurance policy, but there is no allegation that Wingate “actively misrepresented” anything, cf. Hotz v. Minyard, 304 S.C. 225, 230, 403 S.E.2d 634, 637 (1991), “in connection with the congressional life insurance policy or the manner it was paid” — as the Circuit Court concluded in granting summary judgment. In fact, when “the estate and the life insurance were discussed by the parties” and others in a family meeting in October 2001, *164Mrs. Spence acknowledged that there was no ongoing attorney/client relationship with regard to the subject policy and she called Wingate “after the meeting and asked him to put his hat back on as her attorney and he refused.”
Mrs. Spence did retain counsel, who advised the representatives of “The Estate of Congressman Floyd David Spence” that their firm was asking the federal government for a review of the payments that were made pursuant to the policy and that they “[did] not expect this [will] have any impact on the estate.” Accordingly, I would affirm the Circuit Court.
KITTREDGE, J., concurs.