Timothy Devereux v. Jim and Diana Love
30 N.E.3d 754
| Ind. Ct. App. | 2015Background
- Jim and Diana Love retained the Conour Law Firm for a 2008 personal-injury claim; William Conour ultimately settled their case in February 2012 without their knowledge and appropriated settlement funds. Conour later pled guilty to wire fraud and resigned/suspended from the bar.
- Timothy Devereux was an associate at the firm from 2008 and was listed as a named partner in a 2010 firm-name change, but he had no ownership, bank-signatory authority, or access to firm financial records.
- Devereux resigned on December 22, 2011, after learning of repeated delayed payments to experts/co-counsel and an inaccurate case verification report; he notified the Disciplinary Commission and cooperated with the FBI in January 2012 regarding structured-settlement funding issues.
- Devereux sent letters to the Loves after leaving the firm offering to continue representation; the Loves signed a form electing to remain with Conour’s firm and later admitted they knew Devereux was no longer their attorney by December 29, 2011.
- Devereux learned on February 24, 2012 that a client’s case had been settled without the client’s knowledge and learned in July 2012 that the Loves’ case had been settled in February 2012 for $120,000 without their consent; the Loves sued Devereux for malpractice for failing to warn them of Conour’s misconduct.
- The trial court denied cross-motions for summary judgment; on interlocutory appeal the Court of Appeals reversed and directed entry of summary judgment for Devereux, concluding he lacked knowledge sufficient to impose a duty to warn or preserve the Loves’ interests after his departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Devereux breached an attorney duty by failing to warn the Loves of Conour’s misconduct before/when he left the firm | Love: Devereux knew suspicious conduct and should have warned them that they were at risk of being victimized | Devereux: He only knew of delayed payments and bookkeeping problems, had no access to finances, and lacked specific knowledge that Conour would steal client funds | Held: No breach — facts permit only one inference that Devereux lacked knowledge that Conour was stealing funds, so no duty to warn existed then |
| Whether Devereux breached duty in the manner of withdrawal (failed to withdraw in least harmful way) | Love: Devereux remained on record until April 2012 and thus had a continuing duty to protect clients when he learned more about misconduct | Devereux: He ceased acting for the Loves in December 2011; the Loves knew he was no longer their counsel; he filed to withdraw when he learned his withdrawal hadn’t been entered | Held: No breach — no material fact dispute that he effectively ceased representing the Loves and they knew it |
| Whether expert affidavits (Christie, Harrington) should have been struck | Love: Opposed Christie; argued expert testimony insufficient or improper | Devereux: Moved to strike Harrington; designated Christie conditionally | Held: Trial court did not abuse discretion refusing to strike Christie; experts may opine on standard of care though not on conclusions of law |
| Whether summary judgment for Devereux was improper | Love: Facts raise triable issue on breach and continued duty | Devereux: Undisputed facts negate breach and ongoing duty; summary judgment appropriate | Held: Reversed trial court’s denial and directed summary judgment for Devereux |
Key Cases Cited
- In re Conour, 969 N.E.2d 1008 (Ind. 2012) (accepting Conour’s resignation from the Indiana Bar)
- Van Kirk v. Miller, 869 N.E.2d 534 (Ind. Ct. App. 2007) (elements of legal malpractice and summary-judgment standards)
- Clary v. Lite Machines Corp., 850 N.E.2d 423 (Ind. Ct. App. 2006) (summary-judgment review standards and malpractice elements)
- In re Estate of Lee, 954 N.E.2d 1042 (Ind. Ct. App. 2011) (expert testimony and when breach becomes question of law)
- Rice v. Strunk, 670 N.E.2d 1280 (Ind. 1996) (attorney duty to exercise ordinary skill and knowledge)
- Bell v. Clark, 653 N.E.2d 483 (Ind. Ct. App. 1995) (duty when withdrawing: withdraw in least harmful manner)
- Oxley v. Lenn, 819 N.E.2d 851 (Ind. Ct. App. 2004) (distinguishing fact vs. law questions on breach)
- N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462 (Ind. 2003) (existence of duty is question of law)
- Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048 (Ind. 2003) (no need to redetermine well-established duties)
- In re Discipline of Conour, 133 S. Ct. 88 (2012) (U.S. Supreme Court order suspending Conour from practice before the Court)