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Bevan v. Fix3/21/2002
former clients and the subject of their prior representation." Mallen and Smith, Legal Malpractice, § 17.24. Ultimately, it may be appropriate that the attorney, as the party most able to prevent the injury, bear the risk for this failure.
[ ] In the case of Wilbourn v. Stennett, Wilkinson & Ward, the defendant law firm had itself sought "qualification" by the court in the underlying litigation. When the court asked Wilbourn if he wanted the law firm disqualified, he responded negatively. He stated that after three years in federal court the firm had already breached the confidences, and to disqualify the firm would hinder the trial. 687 So.2d at 1217. The court deciding his malpractice claim found that Wilbourne had waived the firm's disqualification and was thus barred from asserting his claim of negligence against them. We cannot say that the facts before us are similar to those in Wilbourn. Unfortunately, the record is not sufficiently developed for us to apply the law herein set out to the instant case, nor is it necessary for us to do so as we have affirmed the district court's judgment on other grounds.
CONCLUSION
[ ] We reverse and remand the summary judgment granted Fix on the Bevan children's claims for intentional infliction of emotional distress for further proceedings. We find within the record genuine issues of material fact necessitating jury determination. On Bevan's claim of malpractice against his former attorney Fix, we recognize the cause of action and have addressed how it is to be applied, but find that Bevan presented no evidence on the issue of his injury or damages; thus Fix is entitled to judgment as a matter of law.
[ ] Affirmed in part, reversed in part and remanded.
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