HENLEY, LOTTERHOS & HENLEY, PLLC v. AMANDA BRYANT
NO. 2021-IA-00994-SCT
IN THE SUPREME COURT OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE: HON. RICHARD A. SMITH
TRIAL COURT ATTORNEYS: THOMAS M. FLANAGAN, JR.
J. WALKER STURDIVANT
AMANDA B. BARBOUR
LA’TOYIA JENESSA SLAY
J. WYATT HAZARD
GEORGE E. ABDO, III
DENNIS L. HORN
SHIRLEY PAYNE
CHARLES E. GRIFFIN
COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: TOM R. JULIAN
GEORGE E. ABDO, III
DENNIS L. HORN
SHIRLEY PAYNE
ATTORNEYS FOR APPELLEE: THOMAS M. FLANAGAN, JR.
J. WALKER STURDIVANT
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISPOSITION: REVERSED, RENDERED AND
REMANDED - 05/18/2023
MOTION FOR REHEARING FILED:
EN BANC.
CHAMBERLIN, JUSTICE, FOR THE COURT:
¶1. Amanda Bryant brought this action against State Farm Automobile Insurance Company (State Farm) and its attorneys, Henley, Lotterhos & Henley, PLLC (HLH), claiming negligence, malicious prosecution, abuse of process, and intentional infliction of emotional distress based on HLH’s actions in a prior subrogation claim. HLH argued in a Motion to Dismiss or, In the Alternative, Motion for Summary Judgment that it was not a proper party to this lawsuit because it was the legal representative of the adverse party in the prior subrogation matter. For this reason, HLH argues it does not owe a duty to Bryant that could give rise to tort liability. The trial court disagreed with HLH and denied its motion. This Court granted HLH’s petition for interlocutory appeal. Based on caselaw, this Court reverses the trial court’s order and renders judgment in favor of HLH. Because State Farm is still party to the action, the case is remanded to the trial court for continuation of the proceedings.
FACTS AND PROCEDURAL HISTORY
¶2. On November 10, 2010, Nga Dang and Bryant were involved in a three-car collision in Gulfport. Dang was insured by State Farm and was compensated by State Farm for her injuries that arose from the accident. On October 28, 2013, State Farm, represented by HLH, brought a subrogation claim against Amanda Bryant for Dang’s damages in the amount of $14,190.61 plus interest and court costs. The complaint stated that “Amanda Bryant - A Minor, may be served with
civilized
E. Violations of the Rules of Professional Conduct
¶42. Bryant alleges that HLH’s actions in the subrogation claim violated numerous rules of professional conduct. Bryant argues that HLH violated its professional duty of candor to
failed to inform the Court that it did not send a copy of the [Motion to Compel Discovery] to Bryant’s true address, failed to inform the court that Bryant had not been served with process, concealed from the court that Bryant was a minor by deleting the ‘minor’ from the heading and style of
HLH argues that the Mississippi Rules of Professional Conduct do not give rise to civil liability.
¶43. This
¶44. Bryant further argues that “when an attorney violates the court’s rules of procedure and ethics and engages in egregious misconduct, then, under those circumstances,
¶45. HLH contends that this Court should reverse the trial court’s judgment because “Mississippi law already has ample safeguards in place to guard against attorney misconduct,” and the trial court’s ruling undermines the adversarial system by creating a conflict of interest. Bryant argues that, if this Court reverses the trial court’s judgment, then attorneys
would be free to make false representations of material facts to the adverse party and the court, to conceal material facts from the adverse party and the court, to file an Answer for the adverse party without her permission, to ignore any requirement that he conduct pre-filing inquiries, and to repeatedly engage in professional and ethical misconduct, all without fear of liability or responsibility for any damages suffered by the adverse party as a direct result of the actions of the attorney.
This Court finds that Bryant fails to account for the myriad options, such as sanctions, bar complaints, and Mississippi’s Litigation Accountability Act8 that are available for her to air her grievance at HLH’s actions in the subrogation claim.
F. Bryant’s Alternative Argument
¶46. Bryant argues in the alternative that if she was never properly served with process, then she was never an adverse party. Bryant takes this reasoning further to submit that if she was never an adverse party then “the rule advocated by the Henley law firm that an attorney does not owe a duty to an ‘adverse party’ does not apply to Bryant.” Bryant does not, however, continue her argument to prove to this Court how under her legal reasoning, HLH would be liable under any tort theory to Bryant. This Court finds that Bryant’s interests were adverse to State Farm’s interests in the previous subrogation claim. Although Bryant was not properly served process, she was an adverse party.
CONCLUSION
¶47. Mississippi caselaw supports a finding of summary judgment in favor of HLH. The trial court’s order is reversed, and judgment is rendered in favor of HLH, dismissing it as a party in this action. The case is remanded to the Leflore County Circuit Court for further proceedings between Bryant and State Farm.
¶48. REVERSED, RENDERED AND REMANDED.
GRIFFIS, JUSTICE, CONCURRING IN RESULT ONLY:
¶49. Because I find dismissal is appropriate under Mississippi Rule of Civil Procedure 12(b)(6), I concur with the majority’s decision to reverse and render “in favor of [Henley, Lotterhos & Henley, PLLC], dismissing it as a party in this action.” Maj. Op. ¶ 47.
¶50. Amanda Bryant’s complaint alleged:
IV. On or about October 28, 2013, defendant State Farm initiated a claim in the Leflore County Court suing Amanda Bryant pursuant to a purported subrogation claim arising from an auto accident in Gulfport, Mississippi on November 10, 2010. State Farm was at all times represented by Henley, Lotterhos & Henley, PLLC, who served as attorney and agent for and on behalf of State Farm. Any actions or inactions by the Henley Law Firm are imputed to State Farm.
V. As reflected by the court file, and the Complaint filed against Amanda Bryant, Amanda Bryant was a minor at the time the suit commenced. The case was assigned civil action number 2013-0316 in the County Court of Leflore County, Mississippi. Thereafter, at the request of Henley, Lotterhos & Henley, a summons was issued to Amanda Bryant - a minor by and through Phillip Ross, Jr., 301 CR 563 Minter City, Mississippi, and a second summons was issued to Amanda Bryant, a minor personally, 301 CR 563 Minter City, Mississippi. The summons on Phillip Ross was returned “personally delivered” on November 10, 2013. There is no return on the summons to Amanda Bryant, personally.
VI. The accident which was the subject of the subrogation case against Amanda Bryant actually took place in Gulfport, Mississippi on November 10, 2010. At the time Amanda Bryant was 17 years of age and actually resided in Gulfport, Mississippi. She continued to reside in Gulfport through the date of default judgment. At no time during her lifetime has Amanda Bryant resided at 301 CR 563 Minter City, Mississippi. Despite defendants failure to secure lawful service of process pursuant to Rule 4 of the Mississippi Rules of Civil Procedures, defendant State Farm through its attorneys Henley Law Firm continued to prosecute the action against the minor Amanda Bryant. State Farm purported to serve discovery upon the minor defendant by service on the defendant at 301 CR 563 Minter City, Mississippi. Plaintiff never received any of the discovery propounded by the defendants inasmuch as she was residing in Gulfport, Mississippi at the time. Defendants failed to aver the basis for venue in Leflore County Court. Venue was not proper in Leflore County Court.
VII. Continuing to prosecute the action without lawful process, State Farm through its attorneys filed a Motion to Compel discovery with a Certificate of Service led showing service on Amanda Bryant, 301 CR 563 Minter City, Mississippi. Amanda Bryant never received such Motion to Compel. Thereafter on
VIII. At some time during 2019, Amanda Bryant was involved in a minor accident and on presenting her license, was told the license was suspended. She was arrested and carried to jail for failing to have a valid drivers license. She was compelled to bond out and respond to the citation in the Municipal Court of Greenwood, MS. She later learned that the defendants had compelled the suspension of her license pursuant to Section 63-15-27 of the Mississippi Code for failure to pay the default judgment entered against her on September 2, 2014. When Amanda Bryant contacted a representative of the Henley Law Firm, she was told the only way her license could be reinstated was to work out a payment plan to satisfy the default judgment. She was also told that her license suspension would continue for another 7 years if she did not work out a payment plan.
IX. Confronted with a citation for Driving with a Suspended License, and the prospect of her license being suspended for a significant period of time, and confronted with the prospect of garnishment of her wages as a result of the default judgment, Amanda Bryant was compelled to employ counsel to represent her in connection with these matters. Eventually, the Municipal Court of Greenwood, Mississippi, entered an order passing the Driving with Suspended License charge to the files. Thereafter, Amanda Bryant, through her attorney, filed a motion to set aside default judgment and for dismissal of action in cause 2013-0316. This took place after failed efforts by Counsel to have defendants voluntarily set aside the default judgment.
X. On August 31, 2020 a hearing was conducted before the Honorable James D. Bell, Senior Status Judge who was appointed to hear the motion after the recusal of Honorable Kevin Adams, Leflore County Judge. Following hearing, an order was entered by the Court on September 14, 2020 setting aside the default judgment and dismissing the case. The Court in its ruling found that the record does not show proper service of process on Amanda Bryant.
XI. As a direct and proximate result of the actions of the defendants, plaintiff has suffered past, present, and future pain, suffering, and mental anguish, and plaintiff has suffered other losses as a result of the improper prosecution of the case by the defendants, including but not limited to lost income, lost job opportunities, lost reputation, attorney fees, bond fees, and other damages.
XII.
XIII. Alternatively plaintiff charges that defendants engaged in the malicious prosecution of Amanda Bryant knowing full well that lawful process had not been executed upon her personally.
XIV. Alternatively plaintiff charges that the defendants abused the judicial process by misrepresentations to the Court and by persisting in the prosecution of this action knowing that the process was not complete.
XV. Alternatively plaintiff charges defendants with intentional infliction of emotional distress through the improper prosecution of the case against the minor in the Leflore County Court, as well as the subsequent actions taken against her to compel payment of an invalid and void default judgment.
XVI. Plaintiff also charges that the commission of these wrongful acts by defendants, were intentional or were so wanton and reckless as to rise to the level of intentional conduct, thereby entitling plaintiff to recover punitive damages from defendants.
¶51. HLH’s motion to dismiss or, in the alternative, motion for summary judgment asserted:
1. This defendant represented State Farm Mutual Automobile Insurance Company in regard to a subrogation action against the plaintiff. The Complaint asserts at paragraph 4 that “State Farm was at all times represented by Henley Lotterhos & Henley, PLLC, who served as attorney and agent for and on behalf of State Farm.”
2. The Complaint purports to assert a cause of action against this defendant, counsel for plaintiff’s adversary in the underlying litigation, for malicious prosecution and other tort-based claims.
3. Mississippi law provides that a malicious prosecution claim is not viable as to the lawyer representing the plaintiff’s adversary in the underlying litigation.
4. Further, Mississippi law establishes that an attorney owes no “duty” to the adverse party in a case he is litigating and, accordingly, cannot be liable to his client’s adversary “under a tort theory.”
¶52. At the motion hearing, HLH argued that its motion was a motion to dismiss, and it requested that its motion be heard as a motion to dismiss. The trial court considered the motion as a motion to dismiss and ruled:
The Complaint filed herein (if taken as true) makes it abundantly clear that what has been alleged herein is not a case of “routine actions of a lawyer” and quite possibly rises to the level of bad faith. This is not simply a lawsuit for having been the subject of a pervious lawsuit.
IT IS, THEREFORE, ORDERED AND ADJUDGED, that . . . Defendant’s Motion to Dismiss for failure to state a claim for relief is hereby denied.
¶53. “When considering a motion to dismiss for the failure to state a claim upon which relief can be granted, we are limited to review of the contents of the complaint . . . .” Spiers v. Oak Grove Credit, LLC, 328 So. 3d 645, 651 (Miss. 2021). “When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted
¶54. If we consider HLH’s motion and accept the allegations of the complaint as true, “it appears beyond reasonable doubt that . . . [Bryant] will be unable to prove any set of facts in support of her claim.” Id. (internal quotation mark omitted) (quoting Howard, 947 So. 2d at 856). The majority correctly notes: “HLH has proved that as the attorney for the adverse party, it owed no duty to Bryant that could give rise to tort liability.” Maj. Op. ¶ 18. Thus, if we accept the allegations of the complaint as true, HLH owed no duty to Bryant and is not liable to Bryant under any tort theory. Therefore, I agree with the majority’s conclusion to reverse and render judgment in favor of HLH, but I find that dismissal is proper under Mississippi Rule of Civil Procedure 12(b)(6).
¶55. The majority acknowledges that “HLH’s arguments prevail under . . . the motion to dismiss standard[.]” Maj. Op. ¶ 16. But the majority then finds that “[b]ased on the inclusion and consideration of the record from the prior subrogation matter by the trial court, HLH’s motion should have been considered as a motion for summary judgment.” Maj. Op. ¶ 15.
¶56. The record shows that the motion was not considered a motion for summary judgment. Instead, the motion was considered and treated as a motion to dismiss. And the trial court denied the motion under Rule 12(b)(6), with no discussion or consideration regarding Mississippi Rule of Civil Procedure 56.9 This appeal considers only the trial court’s denial of a motion to dismiss under Rule 12(b)(6). I find it unnecessary to discuss the alternative motion for summary judgment or to consider HLH’s motion under a summary judgment standard. Instead, this appeal can be and should be resolved under Rule 12(b)(6).
¶57. Based on my review of the complaint, “it appears beyond reasonable doubt that [Bryant] will be unable to prove any set of facts in support of her claim.” Bayer Corp., 32 So. 3d at 502 (internal quotation mark omitted) (quoting Howard, 947 So. 2d at 856). As such, the trial court’s order denying HLH’s motion to dismiss should be reversed, and judgment should be rendered in favor of HLH under Rule 12(b)(6).
KING, PRESIDING JUSTICE, DISSENTING:
¶58. The majority disregards the standards for determining whether summary judgment is appropriate, and incorrectly, especially in light of the summary judgment standards,
categorizes the attorneys’ actions as simply one mistake. Moreover, in its malicious prosecution analysis, the majority relies on incorrect interpretations of the record and the caselaw. Because I believe that, when viewing the evidence in the light most favorable to Amanda Bryant, the nonmoving party, the trial court was correct to deny Henley, Lotterhos & Henley, PLLC’s (HLH) motion for summary judgment, I respectfully dissent.
¶59. As the majority recognizes, when deciding a summary judgment motion, the evidence must be viewed in the light most
according to Mississippi Rule of Civil Procedure 4, as a minor over the age of twelve, Bryant was entitled to personal service of the complaint.
¶60. In a pro se letter from Bryant that HLH admits to receiving around 2013, Bryant represents that she spoke to “Kim” at HLH, who
said all I need to do it [sic] put [‘]I don’t feel Im [sic] at fault[’] in writting [sic], and in 30 days if I don’t respond[] I’ll get a judgement on me.” She then wrote “I am responding because I don’t fully understand how I’m held for 14[,]190.61[.] What about my car her insurance should cover my car (Right) so I would like to know what is the next step because I don’t see where im [sic] responsible thanks for your time.
HLH also filed discovery, and in filings with the court subsequent to the complaint, removed the “minor” designation for Bryant from the paperwork. Moreover, in its motions to compel discovery and for default judgment, HLH asked the court to strike Bryant’s answer, despite the fact that Bryant never filed an answer. The default judgment was issued in 2014 and from 2016 to 2019, HLH subpoenaed Bryant’s drivers’ license information and employment information and eventually had her drivers’ license suspended. At that point, HLH presumably had further information regarding Bryant’s correct address.
¶61. Bryant testified that when she learned that her license was suspended, she called HLH, and it informed her that her only option was to set up a payment plan. Bryant then hired an attorney who filed a motion to set aside the default judgment in November 2019. On August 13, 2020, HLH attempted to file Bryant’s 2013 letter to it as her official answer on
¶62. The majority characterizes these facts as “one mistake” and its consequences. Maj. Op. ¶ 26. Perhaps a jury would agree, but the majority’s generous characterization is not the lens through which we view the evidence on summary judgment. We view the evidence in the light most favorable to Bryant, and with that requirement, the evidence does not lend itself to being categorized as a simple mistake. When viewed in the light most favorable to Bryant, HLH, in possession of the accident report, sued State Farm’s own client for a wreck, for which Bryant was not at fault, on behalf of the at-fault party. It sued Bryant in a county it knew she did not live and in which the accident did not occur. Knowing it did not properly serve Bryant and with full knowledge that she was a minor, it continued to pursue the case, sending all correspondence to the incorrect address. Then, when Bryant did call the office pro se, HLH gave her incorrect legal advice. Having received a pro se letter very obviously directed to HLH in which Bryant disputed her own fault and expressed confusion as to the next steps, HLH did nothing. Further, Bryant clearly indicated that HLH directed her to write such a letter to handle the matter, thus allegedly giving a pro se opposing party faulty legal advice. HLH then eliminated the designation of minor on court papers, which, in the light most favorable to Bryant, may have been to mislead the trial court. It further represented to the trial court that Bryant had filed an answer, despite HLH’s knowledge that she had filed nothing. After Bryant learned of the default judgment against her, she alleges that she again called HLH and was advised that her only option to reinstate her license was to set up a payment plan; otherwise, HLH advised, it would keep her license suspended for seven years. When Bryant hired an attorney, HLH attempted to file an answer on Bryant’s behalf, despite the fact that her own attorney could have filed an answer
¶63. Thus, when viewed in the light most favorable to Bryant, the evidence potentially shows that HLH, on behalf of State Farm, filed a meritless lawsuit (against State Farm’s own innocent client to recover money paid on behalf of its at-fault client), filed it in the wrong venue to subvert Bryant’s knowledge of the lawsuit, failed to personally serve Bryant, hid the lack of personal service from the court, misled Bryant, ignored Bryant, and then misled the trial court in order to obtain a default judgment against Bryant. When these facts were brought to light, HLH again gave Bryant misleading legal advice and then attempted to file a pleading on Bryant’s behalf, despite Bryant and her own attorney having no pleadings to file, thus arguably attempting to mislead the clerk into filing something that would then mislead the court. While there are several ways to interpret the evidence, when doing so in the light most favorable to Bryant, HLH’s conduct certainly appears egregious, potentially involving questionable or improper motive. Consequently, I believe we need to squarely address the issue of attorney conduct giving rise to tort liability to an adverse party.
¶64. First, the concept of duty must be addressed, as I believe the caselaw that states that an attorney owes no duty to an adverse party that gives rise to tort liability is being misunderstood. The elements of negligence are duty, breach, causation, and injury.
Sanderson Farms, Inc. v. McCullough, 212 So. 3d 69, 76 (Miss. 2017) (quoting Miss. Dep’t of Mental Health v. Hall, 936 So. 2d 917, 922 (Miss. 2006)). I find it
[A] finding of duty is necessary only for Plaintiffs’ two claims in negligence; his claims for intentional torts require no traditional finding of duty to [Plaintiff] because the acts alleged were intentional. Indeed, it would be anomalous to invoke a lack of a specific duty in dismissing a complaint for an intentional act, such as assault or battery. The duty, if it must be so named, is obviously to refrain from intentional harm to others. At the level of intent, reference to duty becomes a needlessly academic and didactic exercise.
Purvis v. Hamwi, 828 F. Supp. 1479, 1483-84 (D. Colo. 1993).
¶65. Consequently, the notion that an attorney owes no specialized duty to an adverse party certainly should not extend to all actions based in tort, particularly intentional torts. For example, if an attorney deposing an adverse party became frustrated with that party’s untruthful responses and punched the adverse party, it would be absurd to hold the attorney immune from being sued for the tort of battery. The caselaw that sweepingly states that an attorney owes an adverse party no duty that gives rise to liability in tort is more properly applied to cases involving allegations of ordinary negligence, in which, presumably, sanctions could usually rectify any damage done.
A. Negligence
¶66. While I am not convinced that the allegations, if true, allege only “ordinary” negligence for which Bryant cannot show that HLH had a duty to her, I believe that it is not necessary to address that issue in this case. When construed in the light most favorable to Bryant, the concept of HLH’s duty to her becomes murky. Viewing the evidence in the light most favorable to Bryant, HLH undertook giving her legal advice both times she called it, and failed to instruct her to hire her own attorney. Further, HLH attempted to file a pleading on Bryant’s behalf, and attorneys certainly owe certain duties to the person on whose behalf they file documents with the court. I would therefore find that a genuine issue of material fact exists regarding HLH’s duty to Bryant. See Gibson v. Williams, Williams & Montgomery, P.A., 186 So. 3d 836, 848-50 (Miss. 2016).
B. Malicious Prosecution
¶67. The majority’s determination of Bryant’s malicious prosecution claims relies
¶68. Moreover, Byant actually went above and beyond and did argue to the trial court that HLH lacked probable cause to bring the subrogation lawsuit. In her response to HLH’s motion to dismiss or, in the alternative, motion for summary judgment, Bryant stated:
Even though Amanda Bryant was driving her father’s car which the accident report showed was insured by State Farm at the time of the November 10, 2010 car accident, entitling Amanda Bryant to coverage under her father’s State Farm policy, the Henley law firm, having possession of the accident report showing that her father’s car was insured by State Farm, knew that its client, State Farm, had no right of subrogation against its own insured for a claim arising from the very risk for which the insured, Amanda Bryant, was covered. The Henley law firm filed, in essence, a lawsuit by State Farm against State Farm since State Farm was responsible for paying any damages recovered in its subrogation claim in the 2013 collection lawsuit.
Clearly, Bryant raised this issue before the trial court, even though HLH did not on its own motion, and Bryant had no obligation to preserve an issue HLH did not raise. But now, the majority penalizes Bryant for her alleged failure to counter an argument that HLH did not make to the trial court. Not only did Bryant not have an affirmative duty to counter an argument HLH never made to the trial court, she actually did make that argument before the trial court. HLH is the party that failed to make this argument before the trial court, and this Court should not make it for them.11
¶69. Then, compounding this error, the majority claims that allowing a malicious prosecution claim against the attorney for an adverse party “violates established Mississippi caselaw.” Maj. ¶ 30-31. The majority cites Rose v. Tullos, 994 So. 2d 734, 739 (Miss. 2008) for this proposition, despite the fact that the Court in Rose specifically declined to address the issue. Rose, 994 So. 2d at 739. The majority’s statement that “Tullos, acting as Jones’s attorney, was not the proper party against whom to bring this [malicious prosecution] action” is made out of context, given that this statement was the Court summarizing the trial court’s finding. Maj. Op. ¶ 32 (alteration in original) (internal quotation marks omitted) (quoting Rose, 994 So. 2d at 739). The full paragraph states:
The trial court held that it lacked jurisdiction over this matter. Tullos, acting as Jones’s attorney, was not the proper party against whom to bring this action. Rose argues that some sort of immunity from suit has been granted to Tullos, and thereby all attorneys in Mississippi, by the trial court. The issue of attorney immunity from suit on the
ground of malicious prosecution was never raised at trial and is not properly before this Court. Therefore, the trial court’s dismissal should be affirmed.
Rose, 994 So. 2d at 739 (emphasis added). The Court went on to note, in dicta, that “[n]o continuing duty exists to force an attorney to abandon a claim if it later appears to be without merit” because “the threshold inquiry must take place at the time of the filing of the lawsuit.” Id. The Court further observed that “[t]here is no indication from the record or the procedural posture of the underlying case that Tullos acted in any manner that was improper
or would warrant sanctions.” Id. Instead of relying on any established caselaw, the majority is holding, for the first time, that attorneys for adverse parties are immune to suits for malicious prosecution. I would hold that they are not. Malicious prosecution is an intentional tort with malice as one element, and proving such a tort against an adversary’s attorney would necessarily require proof that the attorney exceeded the bounds of routine representation. See Royal Oil Co. v. Wells, 500 So. 2d 439, 442 (Miss. 1986). Consequently, I would find that malicious prosecution is a viable claim against an attorney for an adverse party and that, construing the facts in the light most favorable to Bryant, that claim should survive HLH’s motion for summary judgment.
C. Abuse of Process and Intentional Infliction of Emotional Distress
¶70. For the reasons stated above, when the evidence is viewed in the light most favorable to Bryant, I believe genuine issues of material fact exist as to whether an ulterior motive by HLH can be shown and whether HLH’s conduct is sufficiently outrageous to warrant an intentional infliction of emotional distress claim.
¶71. Because I believe that the facts, when construed in favor of Bryant, create genuine issues of material fact sufficient to survive summary judgment, I would affirm the trial court’s finding that “[t]he Complaint filed herein (if taken as true) makes it abundantly clear that what has been alleged herein is not a case of ‘routine actions of a lawyer[.]’” Consequently, I respectfully dissent.