Tuesday, May 13, 2003
C.A. Rejects Claim That Lawyer Had Special Duty to Client’s Spouse
Attorney Retained by Wife Didn’t Have to Tell Husband About Suit Regarding Death of Their Child, Justices Rule
By KENNETH OFGANG, Staff Writer/Appellate Courts
An attorney retained in a wrongful death action had no duty to tell the client’s spouse, a potential beneficiary of the suit, what he could do about it or to join him as a party, the Court of Appeal for this district ruled yesterday.
Div. Seven granted a writ of mandate directing that summary judgment be granted in favor of Paramount attorney Howard H. Hall, in a suit brought by Brent Lindrum.
The underlying wrongful death suit resulted from the 1999 death of Lindrum’s infant daughter, who drowned in the swimming pool of Lindrum’s mother’s home. Lindrum and several other relatives were at the home; Lindrum’s wife was not.
Estella Lindrum, without her then-husband’s knowledge, retained Hall in March 2000 to sue her mother-in-law for wrongful death. Brent Lindrum, learning of the suit after it was filed, called it “evil” and said he did not want any “dirty” money from it, and threatened to file for divorce if it was not dismissed.
Estella Lindrum did not back off, and the couple’s divorce became final in May 2001—three months after the wrongful death suit, to which Brent Lindrum never became a party, was settled for $210,000, well within the limits of the defendant’s homeowner’s insurance.
A month after the marriage ended, Brent Lindrum sued his ex-wife and Hall, accusing her of breach of contract, him of malpractice, and both of them of breach of fiduciary duty. He explained that his objection to the wrongful death suit was based on his concern for his mother’s mental state and fear that she might lose her home, and that if he had been told the suit could be settled strictly for insurance money, he would have joined.
Hall, he argued, had a duty to advise him as to what his rights were, or at least to seek other counsel, or to join him as a nominal defendant under Code of Civil Procedure Sec. 382. Estella Lindrum filed a cross-complaint accusing Hall of malpractice.
Los Angeles Superior Court Judge Alan Buckner denied Hall’s motion for summary judgment as to Brett Lindrum’s claim.
Buckner agreed that Brett Lindrum was not Hall’s client, and that Hall might have had a conflict of interest in seeking to advise or represent him, but said the attorney might have had a “professional duty” at least to join him under Sec. 382.
There were, the judge said, triable issues of material fact with regard to “what was going on in [Hall’s] mind” regarding whether Brent Lindrum was exposed to a claim of contributory negligence and whether Estella Lindrum blamed him for the child’s death. Those matters, the judge reasoned, might have a bearing on whether the Lindrums had a common interest similar to that discussed in Meighan v. Shore (1995) 34 Cal.App.4th 1025.
Loss of Consortium
Meighan held that a wife—who, along with her husband, had consulted an attorney with regard to a medical malpractice claim against a physician who had treated the husband—could sue the attorney for failing to advise her of her possible loss-of-consortium claim, even if she understood that the lawyer was representing her husband and not her.
Justice Earl Johnson Jr., however, writing yesterday for the Court of Appeal, said the Lindrums’ situation was different.
“Unlike the couple in Meighan, Estella and Brent never met together with Hall to seek advice about their potential claims arising from their daughter’s death,” the justice explained. “Instead Estella contacted and met with Hall alone to discuss her particular legal rights. At no point did Brent ever contact Hall to discuss the wrongful death case or his legal rights. Hall’s sole client Estella had no expectation Brent would benefit from or rely on Hall’s legal services. Nor is there any evidence Brent himself had any such expectation.”
It would have been awkward, if not unethical, for Hall to have contacted his client’s husband after the couple’s separation to discuss his potential suit against his own mother, Johnson reasoned. “We are wary,” he said, “about extending an attorney’s duty to persons who have not come to the attorney seeking legal advice and whom the attorney has never met.”
Johnson went on to say that Hall had no obligations under Sec. 382, which permits joinder of a person who could join as a plaintiff, but whose consent to an action could not be obtained. It is clear, the justice said, that in a wrongful death action, any liability for failure to join an heir under that provision, which is designed to insure that claims against a common defendant for a single event be brought in the same action, lies with the plaintiff and not with the plaintiff’s attorney.
Johnson noted that Brett Lindrum’s claim against his wife, and her claim against Hall, were not before the court in the writ proceeding, and said the court was not prejudging the merits of those claims.
Attorneys on appeal were Howard M. Fields and Stuart E. Cohen of the Calabasas firm of Hollins & Fields for Hall and Mid-Wilshire lawyer Howard A. Kapp for Lindrum.
The case is Hall v. Superior Court (Lindrum), B162114.
Copyright 2003, Metropolitan News Company