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Barrett v. Freise11/24/2003
ence was presented to the court during the summary judgment proceedings that JoLynn had wasted the settlement proceeds. Moreover, as the trial court subsequently observed, following trial, in the time intervening between the summary judgment and trial, the court had presided over the dissolution trial and found that JoLynn had not wasted the UIM settlement proceeds, in any event. And finally, the evidence at the time of summary judgment showed that Freise worked closely with the attorneys who were handling the marital dissolution action and the court-appointed guardian ad litem, and obtained the approval of all of them to continue representing the Barrett family in the personal injury action, leaving it up to the dissolution lawyers to either settle or try the ultimate distribution of the personal injury proceeds.
Accordingly, we hold that the trial court did not err by dismissing Jeff Barrett's legal malpractice claims by way of summary judgment. Neither did the court err by dismissing the breach of fiduciary obligation claims. These claims were based on the contention that Freise had a conflict of interest and could no longer represent Jeff and JoLynn in the personal injury action, once he learned that JoLynn was contemplating divorce . As we have already discussed, the UIM settlement proceeds had already been distributed by that time, and once JoLynn actually filed for divorce, Freise worked closely with the attorneys and guardian ad litem in that action, keeping them fully advised, and receiving their input regarding decisions to be made in the personal injury action. Each of them expressly approved both Freise's continued representation of the Barretts in the personal injury action, and his proposed course of conducting the case. No evidence whatsoever supported the speculation on the part of John Barrett and Helga Kahr that Freise and JoLynn had somehow colluded with respect to deferring consummation of American States' commitment to settle the claims against its insured in exchange for a payment of policy limits. Not only did the dissolution attorneys and guardian ad litem expressly approve of that strategy, but also, by the time of the summary judgment ruling, the plaintiffs had admitted that it was JoLynn, not Freise, who made the ultimate decision to defer accepting the offer from American States.
Although the plaintiffs presented a declaration from attorney Robert Gould, at the time of summary judgment, in which he opined that Freise did have a conflict of interest in continuing to represent Jeff and JoLynn in the personal injury action, thereby violating Freise's obligations under the Rules of Professional Conduct, and thereby violating the standard of care required of attorneys as well, we agree with the trial court that Gould's declaration raised no genuine issue of material fact. First, whether an attorney's conduct violates the Rules of Professional Conduct is a question of law, not a question of fact. See Eriks v. Denver, 118 Wn.2d 451, 457-58, 824 P.2d 1027 (1992). Moreover, in Hizey v. Carpenter, 119 Wn.2d 251, 259-60, 830 P.2d 646 (1992), the Supreme Court held that violations of ethical rules do not give rise to an independent cause of action against an attorney or provide evidence of malpractice. Thus, any ethics rule violations by Freise, if John and Jeff were able to prove them, which they are not, would not, by themselves, be actionable. Hizey, 119 Wn.2d at 265. Rather, in a malpractice action, the standard of care is the particular duty owed the client under the circumstances of the representation, which may or may not be the same standard contemplated by the ethics rules. Thus, an expert such as Gould must address the breach of the legal duty of care, not simply a supposed br
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