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Freise v. Kahr9/5/2000
Jeff Barrett's wife hired the Freise & Welchman law firm to seek compensation for his personal injuries. After his wife filed for divorce , Jeff Barrett discharged Freise & Welchman and hired Attorney Helga Kahr to represent him. Freise & Welchman sued Kahr, alleging tortious interference with attorney-client relationship. And Kahr sought, inter alia, CR 11 sanctions and RCW 4.84.185 expenses. The trial court dismissed Freise & Welchman's claim on summary judgment, and denied Kahr's motion for sanctions and expenses. Kahr appeals. In addition, Freise & Welchman cross-appeals, contending that the trial court erred by denying the firm's motion to overrule Kahr's attorney-client privilege and refusing to order Kahr to produce communications she had with Jeff Barrett regarding his termination of Freise & Welchman.
We presume that Kahr has the authority to claim that the communications between her and her client are privileged because Freise & Welchman offered no evidence to indicate that Jeff Barrett waived his attorney-client privilege with Kahr. As presented below and briefed for this appeal, we find no basis for reversal of the trial court's ruling denying Freise & Welchman's motion to overrule Kahr's invocation of the attorney-client privilege. Nonetheless, based on the facts in this record, a reasonable attorney could believe that a tortious interference complaint against Kahr was factually and legally justified. Accordingly, we conclude that the trial court did not abuse its discretion by denying Kahr's motions for sanctions and expenses. Affirmed.
FACTS
On October 11, 1995, thirty-six year-old Jeff Barrett was driving a truck that collided with a truck driven by a drunk driver. The accident left Jeff Barrett with severe brain injuries. He was comatose or semi-comatose for at least two months following the accident. During this time, his wife, JoLynn Barrett, entered into a contract with the law firm of Freise & Welchman, hiring Attorney Eric Freise to represent her and her husband in personal injury claims arising out of the accident. This contract states that the client may elect to pay either an hourly fee or a contingent fee at the end of the attorney's representation:
Client may elect at the conclusion of this contract to pay said Attorneys as fees for their services and representation at a{n} hourly rate of $150.00 per hour for attorney time and $75.00 per hour for paralegal time or a contingent fee based on the gross amount of recovery obtained for the Client by way of settlement, compromise, verdict, judgment, or otherwise{.}
Clerk's Papers at 95. JoLynn Barrett wrote in the margin of this page of the contract: 'I prefer the 33-1/3 contingency.' Id. Jeff Barrett did not sign this contract. In fact, he did not receive a copy of this contract until nearly one year later, on December 3, 1996.
On December 27, 1995, Jeff Barrett signed a durable power of attorney, appointing his wife, JoLynn Barrett, as his attorney-in-fact. Jeff Barrett's signature is impaired, as noted by the Notary Public who witnessed it. Moreover, one of Jeff Barrett's doctors, his brother, and his mother maintained that Jeff Barrett was not capable of understanding this document on this date.
In early May 1996, Jeff Barrett moved home with JoLynn Barrett, where he lived for a few days. He then stayed with his brother, John Barrett, and with his parents, until early June when he was moved to a group home. Also in early May, Freise & Welchman obtained $100,000 in Uninsured Motorist Policy Proceeds from Jeff Barrett's insurer on his behalf. Freise & Welchman kept approximately one-third of this
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