The Indiana Court of Appeals affirmed summary judgment in favor of an attorney and law firm in a legal malpractice suit,
although the judges didn’t agree on the professional obligations of the firm based on its contract.
The judges unanimously concluded in Gail M. Flatow and Flatow Comer, LLP v. Dwane Ingalls, No. 49A02-0910-CV-994, that Dwane Ingalls
didn’t put before the appellate court any legal argument that Gail Flatow or Flatow Comer should have made or evidence
that they should have designated in response to the summary judgment motion in the suit in which they represented Ingalls.
Ingalls and the firm had a “contract to hire attorney,” in which the firm would represent Ingalls only in his
defamation claim against his former employer, Indianapolis Power & Light. The firm would draft a motion for summary judgment
and represent him in this “matter through the end of trial.” The firm would also keep Ingalls informed of the
status of the suit. Ingalls also had several other claims against his employer.
Flatow filed the motion for partial summary judgment and brief in support of the defamation claim. IPL filed a cross-motion
for summary judgment on all remaining claims, including the defamation claim. The trial court granted summary judgment to
IPL on its cross-motion and dismissed Ingalls’ remaining claims with prejudice.
Ingalls filed a legal malpractice complaint against several attorneys, including Flatow and the firm Flatow Comer. He said
Flatow was negligent in failing to respond to IPL’s cross-motion for summary judgment.
In affirming the trial court, Judge Margret Robb wrote that Indiana Professional Conduct Rule 1.2(c), which discusses limited
representation, hasn’t been addressed in any “substantive way” by Indiana’s appellate courts. But
she noted Comments 6 and 7, which discuss when limited representation may be appropriate, and that the limitation is a factor
to be considered when determining legal knowledge and skill reasonably necessary for representation.
The majority concluded that Flatow and the firm’s only duty was to file a motion for summary judgment on the defamation
claim, reply to any response, and keep Ingalls informed of the status of that matter. The package Flatow sent to Ingalls with
IPL’s motions included both the response to his motion for partial summary judgment and IPL’s cross-motion for
summary judgment. Ingalls was out of town when the package came. Because of this, they didn’t breach their duty to maintain
contact with Ingalls on the matter, wrote Judge Robb.
There isn’t any designated evidence to show the result of Ingalls’ partial motion for summary judgment would
have been different if a reply had been filed, wrote Judge Robb. The majority also concluded Flatow and the firm’s representation
didn’t include a response to IPL’s cross-motion for summary judgment or that its duty to Ingalls encompassed every
aspect of the defamation claim.
Judge James Kirsch in a separate opinion concurring in result agreed that Ingalls didn’t show whether any negligence
on the part of Flatow and the firm was a proximate cause of his alleged damages. But the judge took a “more expansive
view of the professional obligations” Flatow and the firm owed to Ingalls.
To him, the correct interpretation of the contract was that although Flatow and the firm limited their representation to
Ingalls’ defamation claim, they didn’t limit their representation of that claim.
“To the contrary, they agreed to represent Ingalls on the defamation claim to ‘the end of trial.’ While
my colleagues say that an attorney cannot be negligent for failing to do what there was no duty to do, I believe that the
Flatow Defendants had the express duty to represent Ingalls on his defamation claim and to take all steps required by the
applicable standard of care regarding the summary judgment proceedings and, thereafter, through to the end of trial,”