Harrington v. Pailthorp

• Decision Date: 14 December 1992
• Docket Number: No. 29006-1-I,29006-1-I
• Citation: 67 Wn.App. 901,841 P.2d 1258
• Court: Washington Court of Appeals
• Parties: Bill HARRINGTON, Appellant, Elaine Leslie Ione Harrington, Thomas Jefferson Eugene Harrington, Plaintiffs, v. Michelle L. PAILTHORP, Respondent.

Page 901

67 Wn.App. 901

841 P.2d 1258

Bill HARRINGTON, Appellant Elaine Leslie Ione Harrington, Thomas Jefferson Eugene Harrington, Plaintiffs, v. Michelle L. PAILTHORP, Respondent.

No. 29006-1-I.

Court of Appeals of Washington Division 1.

Dec. 14, 1992.

Bill Harrington, Tacoma, for appellant.

Joel E. Wright, Steven G. Wraith, and Lee, Smart, Cook, Martin & Patterson, P.S., Inc., Seattle, for respondent.

SCHOLFIELD, Judge.

Bill Harrington brought this action against his ex-wife's attorney, Michelle Pailthorp, under a variety of legal theories, including legal malpractice. Harrington appeals the trial court's dismissal of his claims on Pailthorp's motion for summary judgment. We affirm.

FACTS

Bill Harrington and Melissa Thompson were married in 1972 and divorced in March 1987. They had two minor children at the time of their divorce. Thompson was awarded primary residential custody of the children with Harrington to have liberal visitation rights. The decree stated that both parents were fit and proper persons to be awarded custody and further provided that residential custody and visitation would be by mutual agreement.

On August 14, 1987, Thompson filed a motion to modify the decree of dissolution previously entered. She was represented in that action by defendant/respondent herein, Michelle Pailthorp. This motion was vigorously opposed by Harrington, who was represented by counsel during the modification proceeding. A final order modifying the decree was entered January 25, 1989. Under the terms of this order, Harrington and Thompson agreed to ongoing mediation with a counselor who had the power to alter residential and visitation arrangements in accord with the children's best interests.

Following resolution of the custody dispute, Harrington brought this suit against Pailthorp. Acting pro se, he named himself and his two minor children as plaintiffs. ¹ 1] In part, Harrington claimed that Pailthorp, in representing Thompson in the modification action, failed to adequately investigate the facts and law and ignored conflicts of interest between Thompson and the children. Harrington further claimed that Pailthorp had violated her duty of candor toward the tribunal, as well as other court rules.

By order dated May 15, 1991, the children's claims were dismissed without prejudice after Harrington failed to pay the costs of a guardian ad litem and attorney to represent them. On June 28, 1991, Pailthorp moved for summary judgment and counterclaimed for frivolous prosecution. The trial court granted Pailthorp's motion, and awarded her $15,843.82 in attorney's fees and costs pursuant to CR 11. The court, in findings of fact and conclusions of law, found all of Harrington's claims to have been advanced frivolously and without good cause.

In this appeal, Harrington challenges only the dismissal of his malpractice claim against Pailthorp and the imposition of sanctions against him under CR 11. ² He does not appeal any of the trial court's factual findings in support of the CR 11 sanctions, nor does he appeal the order dismissing his children's claims.

In evaluating a summary judgment, this court makes the same inquiry as the trial court. Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 119 Wash.2d 334, 341, 831 P.2d 724 (1992). A motion for summary judgment should be granted only if the pleadings, affidavits, depositions, and admissions on file demonstrate that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Harris v. Harris, 60 Wash.App. 389, 392, 804 P.2d 1277, review denied, 116 Wash.2d 1025, 812 P.2d 103 (1991). A case presenting only issues of law is properly resolved on summary judgment. Harris, at 392, 804 P.2d 1277.

LEGAL MALPRACTICE

Harrington contends that this court should hold Pailthorp liable for malpractice under any one (or all) of the following theories: (1) third party beneficiary theory; (2) multi-factor balancing approach; (3) assumption of duty theory; (4) trustee liability theory; and (5) nonconflict of interest theory. Pailthorp responds that she owed Harrington no duty, and that none of the exceptions to the general rule of third party nonliability are applicable. Pailthorp claims that there was a complete failure of proof as to Harrington's legal malpractice claims.

The general rule requires that to establish a claim for legal malpractice, a plaintiff must prove the following elements: (1) the existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney's breach of the duty and the damage incurred. Hizey v. Carpenter, 119 Wash.2d 251, 260, 830 P.2d 646 (1992).

In this case, there are no facts to support the existence of an attorney-client relationship between Pailthorp and Harrington, and Harrington has conceded that Pailthorp at no time directly represented him. ³ There was no privity of contract between the two, and thus Pailthorp cannot be liable for malpractice to Harrington--a nonclient--under the traditional rule. See Bohn v. Cody, 119 Wash.2d 357, 364-65, 832 P.2d 71 (1992). However, Washington recognizes two exceptions which allow for attorney liability to nonclients despite the absence of privity. See Stangland v. Brock, 109 Wash.2d 675, 680, 747 P.2d 464 (1987); Bohn, at 365, 832 P.2d 71. First, an attorney may be held liable for negligence to third party beneficiaries of an attorney-client relationship. Bohn, at 365, 832 P.2d 71. Second, an attorney may be held liable under a multifactor balancing test developed in California. Bohn, at 365, 832 P.2d 71.

The third party beneficiary theory has been used by courts in holding that an attorney who drafts a will for his client owes some duty to the intended beneficiaries of the will. See Stangland, 109 Wash.2d at 681, 747 P.2d 464. The plaintiff must prove that he or she was intended to benefit from the established attorney-client relationship. Stangland, at 681, 747 P.2d 464.

Harrington claims that he is a third party beneficiary to Pailthorp's actions regarding the affairs of the minor children. He asserts that a parenting plan governing parents and minor children (which presumably was a component of the divorce decree) is an automatic third party beneficiary situation. However, Pailthorp did not represent either Harrington or Thompson in their 1987 dissolution. Pailthorp represented Thompson only in the subsequent modification proceeding. Harrington has produced no evidence that he was an intended beneficiary of that attorney-client relationship. Harrington retained his own counsel for the modification action, and was not a third party beneficiary to the agreement between Thompson and Pailthorp.

The other exception to the privity requirement is the multifactor balancing test. Under this test, six factors are evaluated:

the extent to which the transaction was intended to affect the plaintiff; the foreseeability of harm to the plaintiff; the degree of certainty that the plaintiff suffered injury; the closeness of the connection between the defendant's conduct and the injury; the policy of preventing future harm; and the extent to which the profession would be unduly burdened by a finding of liability. The inquiry under this multi-factor test has generally focused on whether the attorney's services were intended to affect the plaintiff.

Bohn v. Cody, 119 Wash.2d at 365, 832 P.2d 71 (quoting Stangland, at 680, 747 P.2d 464). While the Bohn standard at first glance would appear quite broad, the court's actual holding in the case indicates a narrower application of the rule. In Bohn, an attorney discussed a loan transaction with the potential lender--who was unrepresented by counsel--although the attorney already represented the borrowers. The attorney told the lender that he represented the borrowers and could not represent her, but he did not advise the lender to seek independent counsel. Moreover, his incomplete responses toBohn's inquiries were potentially misleading. See Bohn, at 359, 367, 832 P.2d 71. The lender brought suit against the attorney after the borrowers failed to repay the loan. Bohn, at 362, 832 P.2d 71.

The Bohn court, applying the multi-factor balancing test, found that issues of fact existed as to whether the attorney owed the lender a duty. Bohn, at 359, 367, 832 P.2d 71.

In this case, there is no allegation that Pailthorp ever met with or discussed the divorce with Harrington while he was unrepresented. The modification proceeding was adversarial from the outset. Harrington was represented by separate counsel. Bohn has no application in this case.

In addition to the above recognized theories, Harrington invites the court to approve of several others. He first asserts that Pailthorp can be held liable under an "assumption of the duty" theory of liability. Harrington contends that the custodial parent has several duties under RCW 26.09.004(3) and that Pailthorp assumed these duties when she gratuitously represented his children in the modification action. In her zealous representation of Thompson, Harrington claims, Pailthorp ignored her duty to the children and failed to protect the children's familial bonds with the noncustodial parent.

The central flaw in Harrington's theory is his contention that Pailthorp represented his children in the modification action. It is from this "gratuitous representation", Harrington claims, that Pailthorp's duty arose. However, there is no evidence that Pailthorp represented the children, gratuitously or otherwise. It is the function of an independent attorney or guardian ad litem to represent the children's interests. See RCW 26.33.020(10); RCW 26.09.110. As Harrington concedes in his own affidavit, a guardian ad litem was in fact appointed during the course...