Diean Sabin v. Ivan Ackerman

IN THE SUPREME COURT OF IOWA
No. 12–0627

Filed March 28, 2014

DIEAN SABIN,

Appellant,

vs.

IVAN ACKERMAN,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Bremer County,

Rustin Thomas Davenport, Judge.

Plaintiff appeals the district court’s decision granting defendant’s

motion for summary judgment. DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

David J. Hanson of Hofmeyer & Hanson, P.C., Fayette, and

John W. Hofmeyer III of Hofmeyer & Hanson, P.C., Oelwein, for

appellant.

Robert M. Hogg and Patrick M. Roby of Elderkin & Pirnie, P.L.C.,

Cedar Rapids, for appellee.
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CADY, Chief Justice.

In this appeal, the claims raised by the parties require us to

examine the duty of care owed by an attorney hired by an executor of an

estate to render legal services in the administration of the estate. The

executor brought a legal malpractice lawsuit against the attorney for

failing to adequately protect her personal interests during the

administration of the estate and in the distribution of property of the

estate. The district court granted summary judgment to the attorney

based on its determination that the attorney did not have a duty to

protect the personal interests of the executor. We transferred the case to

the court of appeals, and it reversed the decision of the district court.

On further review, we vacate the decision of the court of appeals and

affirm the decision of the district court.

I. Background Facts and Prior Proceedings.

Elmer and Alberta Gaede owned a 120-acre farm near Tripoli,

Iowa, in Bremer County. In early 2001, they entered into a contract to

lease the farm to James and Marlys Gaede. James and Marlys were

husband and wife, and James was a son of Elmer and Alberta.

The term of the lease was sixteen years, and the annual rent was

$12,500. The contract gave James and Marlys the exclusive option to

buy the property for $200,000 at any time during the lease. If the option

to buy was exercised, the purchase price would be reduced by the total

amount of the rent that had been paid. Ivan Ackerman, an attorney in

Waverly, Iowa, prepared the lease and notarized the signatures of the

parties to the contract.

Elmer died testate on February 27, 2005. He was eighty-six years

old. Alberta had predeceased him. Under his will, Elmer left his estate

in equal shares to three of his four children. The three children were
 3

James; another son, Steven Gaede; and his daughter, Diean Sabin.

Another daughter was not included as a beneficiary under the will. The

largest asset of the estate was the farmland, which James was farming

pursuant to the lease.

Diean was named executor under the will. She designated

Ackerman as the attorney in the probate report filed with the court in the

probate proceedings. There was no other written documentation of an

attorney–client relationship between Diean and Ackerman. The farm was

valued at $200,000 in the probate inventory.

During the pendency of the probate proceedings, James and

Marlys exercised the option under the lease agreement to purchase the

farm. In response, the three beneficiaries of the will and their spouses

conveyed the farm by warranty deed to James and Marlys pursuant to

the terms of the option. Ackerman prepared the documents to convey

title and notarize the signatures on the documents. The deed was placed

in escrow pursuant to a written agreement. Ackerman did not advise

Diean that the validity of the option might be subject to a legal challenge

and did not advise her to seek independent counsel to obtain legal advice

on her personal interests in the transaction. Likewise, Diean never

expressed to Ackerman any information to question the legality of the

option. The estate was subsequently closed.

Diean and Steven later initiated a lawsuit against James, claiming

the option under the lease was invalid. They claimed the market value of

the farm was much more than the purchase price. Several specific

grounds to invalidate the option were asserted, including

unconscionability, unreasonable restraint on alienation, and undue

influence. The parties later settled the action for a relatively small sum

of money.
 4

A short time later, Diean brought this legal malpractice lawsuit

against Ackerman. She alleged Ackerman failed to advise her about the

potential legal challenges to the enforcement of the option in the farm

lease at the time it was exercised by James and Marlys during the

administration of the estate. She also alleged Ackerman failed to advise

her to seek independent counsel to protect her personal interests.

Ackerman moved for summary judgment. He claimed he had no

duty of care to protect Diean’s personal interests relating to the

enforceability of the option because he only represented her in her

capacity as the executor of the estate. 1 In response, Diean argued an

estate attorney represents an executor both in the capacity of an

executor and with respect to the personal interests of the executor,

unless the representation is specifically limited by the attorney.

Consequently, she claimed Ackerman had a duty to examine and explain

the validity of the option and advise her of the need for independent

counsel. In her affidavit and resistance to the motion for summary

judgment, she also claimed she viewed Ackerman as representing her

personal interests.

The district court granted summary judgment for Ackerman. 2 It
found he did not have a duty of care to Diean as a matter of law to advise

her about her potential challenges to invalidate the option. The district

court found the duties identified by Diean fell outside the duties of an

1Ackerman also claimed summary judgment was proper based on the settlement
of Diean’s lawsuit with James and Marlys. He further claimed the release signed by
Diean and James in that lawsuit absolved Ackerman of any malpractice. The district
court denied summary judgment on these grounds, and Ackerman did not pursue them
on appeal.
2Attorney Ivan Ackerman died in 2011 while his motion for summary judgment
was pending before the court. The parties agreed to continue the lawsuit in his name
and not substitute the executor of his estate. See Iowa Code § 633.410(3) (2011).
 5

estate attorney because they did not pertain to matters that would have

frustrated the testamentary intent of the testator.

On appeal, Diean makes two core arguments to support her claim

that the district court erred in granting summary judgment. First, she

argues an estate attorney represents the individual interests of the

executor unless the attorney specifically limits the scope of the

representation to those duties pertaining to the administration of the

estate. Second, she alternatively asserts a factual dispute existed

whether Ackerman should have known that she believed he was

representing her personal interests. If established, Diean asserts

Ackerman had a duty to disclose the scope of his representation to her

and advise her to seek independent counsel based on potential

challenges to the lease and the conflict of interest presented by her

potential challenge.

The case was transferred to the court of appeals. It held a factual

dispute existed over the question whether Diean had a reasonable

expectation that Ackerman was representing her personal interests.

Ackerman sought, and we granted, further review.

II. Standard of Review.

We review a district court’s decision on a motion for summary

judgment for correction of legal errors. Phillips v. Covenant Clinic, 625

N.W.2d 714, 717 (Iowa 2001); see also Iowa R. App. P. 6.907. Summary

judgment “is appropriate where the moving party shows no genuine issue

of material fact and it is entitled to judgment as a matter of law.”

Swartzendruber v. Schimmel, 613 N.W.2d 646, 649 (Iowa 2000); accord

Iowa R. Civ. P. 1.981(3). “The burden is on the moving party to

demonstrate that it is entitled to judgment as a matter of law.” Sallee v.

Stewart, 827 N.W.2d 128, 133 (Iowa 2013). As we determine whether the
 6

moving party has met this burden, we view the record in the light most

favorable to the nonmoving party. Wright v. Am. Cyanamid Co., 599

N.W.2d 668, 670 (Iowa 1999). “Even if facts are undisputed, summary

judgment is not proper if reasonable minds could draw from them

different inferences and reach different conclusions.” Walker Shoe Store,

Inc. v. Howard’s Hobby Shop, 327 N.W.2d 725, 728 (Iowa 1982).

However, the existence of a duty is generally a legal question and is thus

susceptible to summary judgment. See Ruden v. Jenk, 543 N.W.2d 605,

607 (Iowa 1997).

III. Discussion.

A claim for a legal malpractice normally requires the presence of an

attorney–client relationship that gives rise to a duty of care for the

attorney to protect the client. Trobaugh v. Sondag, 668 N.W.2d 577, 580

n.1 (Iowa 2003); accord Ruden, 543 N.W.2d at 610; Schmitz v. Crotty, 528

N.W.2d 112, 115 (Iowa 1995). The claim also requires the attorney to

breach the duty in the performance of an act or in failing to act.

Trobaugh, 668 N.W.2d at 580 n.1. It further requires the breach to

cause harm to the client. Id. In response to the arguments asserted by

Diean on appeal, we must primarily examine the element of the duty of

care required of estate attorneys.

An attorney hired by an executor or administrator undertakes to

perform the fiduciary obligations of the personal representative to

properly oversee the administration of the estate. Ruden, 543 N.W.2d at

610; see also Iowa Code § 633.82 (2011) (recognizing an attorney is

designated by fiduciary to assist in the administration of the estate. “The

employment of an attorney by the personal representative creates

between them the attorney–client relationship.” 1 Sheldon F. Kurtz, Iowa

Estates: Intestacy, Wills, and Estate Administration § 2.6, at 58 (3d ed.
 7

1995) [hereinafter Kurtz]. It means the attorney has a duty to exercise

reasonable skill and care in handling the administration of the estate for

the executor or administrator. See Ruden, 543 N.W.2d at 610. This duty

requires the attorney to render all services needed in the administration

of the estate. See id.; see also Iowa Code § 633.82. Many of these tasks

are identified in the probate code, but some are not. For example, an

estate attorney has a duty to advise executors or administrators of the

legal validity of instruments that affect the administration of the estate.

See Ruden, 543 N.W.2d at 610–11 (recognizing a duty of an estate

attorney to advise the executors of the legal validity of a written

instrument held by the decedent at the time of death that assigned the

decedent’s interest in a real estate sales contract to the executors).

Yet, attorneys represent clients only on matters they have been

engaged to discharge. Comm. on Prof’l Ethics & Conduct v. Wunschel, 461

N.W.2d 840, 845 (Iowa 1990); Kurtenbach v. TeKippe, 260 N.W.2d 53, 56

(Iowa 1977) (recognizing a legal malpractice action requires not just an

attorney–client relationship but requires the existence of such a

relationship with respect to the act or omission upon which the

malpractice claim is based). Thus, matters outside the administration of

the estate would not normally be within the scope of representation

between an executor or administrator and the designated attorney.

This background helps to reveal that the duties of an attorney

hired by an executor or administrator also extend to the estate and to all

other distributees. Ruden, 543 N.W.2d at 610. The proper

administration of the estate requires that the intent of the testator

governing the administration of the estate and the distribution of

property not be frustrated by a breach of a duty of the attorney.

St. Malachy Roman Catholic Congregation of Geneseo v. Ingram, 841
 8

N.W.2d 338, 348 (Iowa 2013) (recognizing a lawyer owes a duty to the

direct, intended, and specifically identifiable beneficiaries of the will);

Schreiner v. Scoville, 410 N.W.2d 679, 682 (Iowa 1987) (indicating

liability arises when testator’s intent is frustrated and beneficiary’s

interest is lost, diminished, or unrealized). Thus, we have permitted a

beneficiary to maintain a legal malpractice action against the designated

attorney of an estate when the attorney breaches a duty owed to the

beneficiary in handling the estate and causes harm. See, e.g., Schmitz,

528 N.W.2d at 515–17 (involving a breach of a duty to beneficiaries when

attorney mishandled a tax return that resulted in higher taxes than

should have been paid and improperly reduced the share of the estate to

the beneficiaries). This third-party-beneficiary doctrine identifies an

exception to the general rule that an attorney–client relationship is

required to pursue an attorney malpractice action. See Brody v. Ruby,

267 N.W.2d 902, 906 (Iowa 1978); accord Restatement (Third) of the Law

Governing Lawyers § 51(3), at 357 (2000) [hereinafter Restatement

Governing Lawyers]; see also Estate of Leonard v. Swift, 656 N.W.2d 132,

145 (Iowa 2003) (indicating a third-party claim exists when “the third

party is a direct and intended beneficiary of the lawyer’s services”

(internal quotation marks omitted)).

In this case, Diean did not pursue her malpractice claim against

Ackerman under either of these two theories of liability. Her claim does

not rest on Ackerman’s duty to her in her capacity as the executor to

properly perform all services required to administer the estate or his duty

to her as a third-party beneficiary of the estate. As revealed in her

answers to interrogatories and resistance to summary judgment, Diean’s

lawsuit centers on a claim that the attorney–client relationship imposed

a duty on Ackerman to inform her of all considerations relevant to her
 9

personal interests in connection with the exercise of the option by James

during the administration of the estate and the execution of the

documents that transferred the farm to James. She also argues that the

presence of her personal interests in the exercise of the option imposed a

duty on Ackerman to advise her of the need to consult with independent

counsel to protect her personal interests by challenging the option if the

services he rendered as the estate attorney did not include such a duty.

She claimed this breach of duty reduced her chances of success in her

lawsuit against James over the option. Thus, the first issue we face is

whether an attorney designated by an executor or administrator to assist

in the administration of the estate has an independent duty to represent

the personal interests of the executor or administrator. It is the role of

the court to decide as a matter of law whether a duty of care arises out of

a relationship between two parties. 3 St. Malachy, 841 N.W.2d at 346.

Diean argues the law recognizes that the attorney retained to

represent the executor represents the personal interests of the executor

unless the attorney specifically advises the executor that the

representation is limited to the administration of the estate. She claims

this law establishes a duty for an estate attorney to protect her personal

3“Historically, we have considered three factors when determining whether a
duty exists: ‘(1) the relationship between the parties, (2) reasonable foreseeability of
harm to the person who is injured, and (3) public policy considerations.’ ” St. Malachy,
841 N.W.2d at 346 (quoting Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009)).
“In Thompson, we . . . rejected the use of foreseeability when determining, as a matter of
law, that one party did not owe a duty to another.” Pitts v. Farm Bureau Life Ins. Co.,
818 N.W.2d 91, 98 (Iowa 2012); see Thompson, 774 N.W.2d at 835. Recently, we
clarified that Thompson’s rule reaches beyond physical harm to include, at least,
emotional harm as well. See Miranda v. Said, 836 N.W.2d 8, 28 & n.13 (Iowa 2013).
However, we have resisted expanding Thompson’s rejection of foreseeability to “cases
. . . that are ‘based on agency principles and involve[] economic loss.’ ” St. Malachy, 841
N.W.2d at 346 (quoting Langwith v. Am. Nat’l Gen. Ins. Co., 793 N.W.2d 215, 221 n.3
(Iowa 2010), superseded by statute, 2011 Iowa Acts ch. 70, § 45 (codified at Iowa Code
§ 522B.11(7) (Supp. 2011))); accord Pitts, 818 N.W.2d at 99.
 10

interests during administration of the estate. She primarily supports her

claim by relying on the rule of professional conduct that permits a lawyer

to “limit the scope of the representation.” See Iowa R. Prof’l Conduct

32:1.2(c) (“A lawyer may limit the scope of the representation if the

limitation is reasonable under the circumstances and the client gives

informed consent.”). Iowa Rule of Professional Conduct 32:1.2(c) is

actually a broader principle of law more fully described in the

Restatement Governing Lawyers. The Restatement provides:

(1) Subject to the requirements stated in this
Restatement, a client and lawyer may agree to limit a duty
that a lawyer would otherwise owe to a client if:
(a) the client is adequately informed and consents;
and
(b) the terms of the limitation are reasonable in the
circumstances.

Restatement Governing Lawyers § 19(1), at 162. We have relied on the

Restatement Governing Lawyers in prior cases to help resolve issues

pertinent to the duty of care of estate attorneys. See Swift, 656 N.W.2d

at 145–46.

While this rule permits a lawyer to limit the scope of representation

by agreement with a client, it only creates a duty for a lawyer to advise a
client of the scope of representation when an agreement is reached to

limit representation. The rule allows an attorney and client to “agree to

limit a duty a lawyer would otherwise owe to the client.” Restatement

Governing Lawyers § 19(1), at 162 (emphasis added). Thus, the rule does

not support Diean’s claim that estate attorneys represent the personal

interests of executors or administrators unless specifically limited.

Additionally, a duty for an estate attorney to protect the personal

interest of the executor cannot arise from the duty of the attorney to

administer the estate. Our cases reveal that lawyers only represent
 11

clients on matters they have been engaged to discharge. Wunschel, 461

N.W.2d at 845 (recognizing a lawyer only bears responsibility for those

legal matters he or she is engaged to discharge); Kurtenbach, 260 N.W.2d

at 56 (recognizing a legal malpractice action requires not just an

attorney–client relationship, but requires the existence of such a

relationship with respect to the act or omission upon which the

malpractice claim is based). An attorney does not have a duty to inquire

into matters that do not pertain to the discharge of the duties

undertaken by the attorney. Kurtenbach, 260 N.W.2d at 57. Just like

the duties of the executor, the duties of the designated attorney extend to

estate administration. See Ruden, 543 N.W.2d at 610. The personal

interests of the executor are outside the scope of the services needed to

administer the estate. The distinction between services related to the

personal interests of the executor and services related to estate

administration is borne out by the source of compensation for attorneys

designated by personal representatives. See Iowa Code § 633.198

(recognizing designated attorney is paid from estate funds). The estate

funds can only be used for services related to the administration of the

estate. See In re Estate of Scheeler, 226 Iowa 650, 659–60, 284 N.W.

799, 803–04 (1939).

Moreover, we observe no compelling reason to create a broader

duty for an attorney for the executor, or to create a duty for the attorney

to affirmatively advise a personal representative that the representation

does not extend to the personal interests of the personal representative.

The duty advocated by Diean is sought to protect executors who expect

that their personal interests are protected by the designated attorney.

Yet, personal representatives are protected by our law when they

reasonably expect an attorney is representing their personal interests.
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The Restatement Governing Lawyers recognizes an attorney–client

relationship is created when “a person manifests to a lawyer” an intent

for the lawyer to provide legal services and “the lawyer fails to manifest

lack of consent” and “knows or reasonably should know that the person

reasonably relies on the lawyer to provide the services.” Restatement

Governing Lawyers § 14(1)(b), at 125. This principle is consistent with

our cases that recognize an attorney can impliedly agree to provide legal

assistance. State v. Parker, 747 N.W.2d 196, 203–04 (Iowa 2008). In

fact, the Restatement Governing Lawyers expressly addresses the

situation involving a lawyer who represents a fiduciary. See Restatement

Governing Lawyers § 14 cmt. f, at 130–31. It provides:

Under subsection (1)(b), a lawyer’s failure to clarify
whom the lawyer represents in circumstances calling for
such a result might lead the lawyer to have entered into
client-lawyer representations not intended by the lawyer.
Hence, the lawyer must clarify whom the lawyer intends to
represent when the lawyer knows or reasonably should know
that, contrary to the lawyer’s own intention, a person,
individually, or agents of an entity, on behalf of the entity,
reasonably rely on the lawyer to provide legal services to that
person or entity . . . .
In trusts and estates practice a lawyer may have to
clarify with those involved whether a trust, a trustee, its
beneficiaries or groupings of some or all of them are clients
and similarly whether the client is an executor, and estate,
or its beneficiaries. In the absence of clarification the
inference to be drawn may depend on the circumstances
....

Id.

The obligation imposed on a lawyer to clarify the scope of

representation when demanded by the circumstances adequately

protects an executor or administrator and obviates the need for a duty to

advise in all cases. We also observe that the rules of professional

conduct governing the duties of lawyers when conflicts of interest arise
 13

provide additional protection. See Iowa R. Prof’l Conduct 32:1.7; see also

Kurtz § 2.7, at 59–63. When a conflict arises in estate administration, a

lawyer should clarify the situation. See Iowa R. Prof’l Conduct 32:1.7

cmt. 27. 4

Finally, the duty of an estate attorney to protect the interests of an

executor or administrator who is also a beneficiary provides additional

protection from any potential harm to the executor or administrator. See

Schmitz, 528 N.W.2d at 116. This duty would protect most instances

when the administration of the estate would implicate the personal

interests of the executor.

Accordingly, we decline to adopt the position advocated by Diean to

impose a duty on an estate attorney by virtue of the attorney–fiduciary

relationship to represent the personal interests of the personal

representative. We conclude the creation of a relationship between an

attorney and an executor or administrator does not impose a duty to

protect the personal interests of the executor or administrator.

Thus, we turn to consider the alternative argument raised on

appeal by Diean that summary judgment was improper because a

genuine issue of material fact existed over the question whether a duty

for Ackerman to represent her personal interests was created by her

expectation of representation. As outlined, the focus of this inquiry is on

whether the estate attorney knew or should have known the executor

4Comment 27 provides:
[C]onflict questions may arise in estate planning and estate
administration. A lawyer may be called upon to prepare wills for several
family members, such as husband and wife, and, depending upon the
circumstances, a conflict of interest may be present. In order to comply
with conflict of interest rules, the lawyer should make clear the lawyer’s
relationship to the parties involved.
 14

reasonably relied on the attorney to represent the personal interests of

the executor.

We have previously identified one circumstance in which the

expectation of representation can expand the duties of an estate attorney

to include the duty to protect a personal interest of an executor. In

Ruden, an estate attorney discovered a written assignment of a contract

in the decedent’s safe deposit box. 543 N.W.2d at 608. The document

assigned the decedent’s interest in a contract to the two executors under

his will, upon his death. Id. The executors were also two of the six

beneficiaries under the will. Id. at 607–08. The assignment was drafted

by another attorney. Id. at 608. The estate attorney informed the

executor–beneficiaries that they were entitled to receive the contract

payments pursuant to the assignment, and he made arrangement for the

payments to be made to them. One of the other beneficiaries

subsequently challenged the validity of the assignment, which was

ultimately found to be invalid. Id. at 608–09. This result meant that all

beneficiaries shared in the decedent’s interest in the contract, not just

the two executors.

In the malpractice action brought by the two executors against the

designated estate attorney, we first found the estate attorney had a duty

in the course of the administration of the estate to properly advise the

executors about the validity of the assignment or the contract. Id. at

610–11. This duty arose because it was necessary to properly administer

the estate. See id. Yet, we also found a factual dispute existed over the

additional issue whether a personal attorney–client relationship was

created between the executors and the attorney that also imposed a duty

for the estate attorney to further advise the executors of their personal

considerations in a potential malpractice action against the attorney who
 15

had drafted the assignment. Id. at 611. In response to the challenge by

the beneficiary to the validity of the assignment during the

administration of the estate, the estate attorney had written a letter to

the executors and asked if they wanted to retain his services to respond

to the challenge. Id. at 609. We found the totality of the circumstances,

including expert testimony, generated a factual issue whether the

attorney undertook to represent the executors in the challenge only in

their capacity as executors or also in their personal capacity. Id. at 611.

This question was important because the executors claimed the estate

attorney should have advised them of the potential malpractice lawsuit

against the preparer of the assignment prior to the running of the statute

of limitations period applicable to the lawsuit. Id. at 610–11.

The circumstances identified by Diean in this case to support the

imposition of a duty of care for Ackerman to advise her of the potential

challenge to the lease option and to advise her to seek independent

counsel before executing the documents that transferred the farm to

James are found in her affidavit filed in resistance to the motion for

summary judgment. In the affidavit, she indicated that she viewed

Ackerman as her attorney without any limitation and further asserted

that he never informed her otherwise. She subjectively believed

Ackerman was representing her personal interests. She argues this

subjective expectation should control the outcome.

The circumstances of this case fall far short of the circumstances

that generated the factual dispute in Ruden. In Ruden, a jury question

over the reasonable expectation of the executors was generated by

circumstances that included a discussion between the executors and the

designated attorney about engaging the services of the attorney to protect

their interests, as well as expert testimony. Here, insufficient facts exist
 16

in the record that would permit a reasonable fact finder to conclude

Ackerman was reasonably alerted that Diean was relying on him to

advise her concerning her potential interests in challenging the lease

option. Our existing legal standard requires such facts. The subjective

expectation of the executor is not enough.

Additionally, the option agreement itself did not raise any red flags

to reasonably alert Ackerman that Diean needed individual

representation. Diean acknowledged her claim of undue influence was

not apparent from the written lease, and she does not claim she

discussed any facts with Ackerman during the administration of the

estate that supported an inference undue influence was involved in

entering into the lease in 2001. Furthermore, the restraint-of-alienation

claim, which she acknowledged was the thrust of her objection to the

option, is a doctrine that has been applied to a fixed-price preemption to

buy, not an option to buy. See Trecker v. Langel, 298 N.W.2d 289, 292

(Iowa 1980). Most importantly, Diean alleged no facts that showed she

had a reasonable expectation that Ackerman represented her personally,

rather than in her capacity as a fiduciary. Thus, Ackerman had no

reason to reasonably know she believed he was representing her

interests in the lease option. We conclude there are insufficient facts to

support her claim that would allow a fact finder to conclude that

Ackerman reasonably understood that Diean expected him to protect her

personal interests in challenging the option.

The proposition urged by Diean that estate attorneys should have

a duty to advise executors and administrators that their services are

limited would eliminate any confusion presented when executors who

engage the services of an estate attorney believe the attorney represents

their personal interests. This proposition may describe a better practice
 17

for estate attorneys to follow. A better practice, however, does not

necessarily describe a legal responsibility for an attorney. Additionally, a

better practice is not necessarily identified and developed from the

circumstances of a single case. Instead, a better practice can often result

from changes to our governing rules of practice after study and input

from the bench and bar. In this case, however, we decline to impose a

new duty on lawyers based on the facts and circumstances presented.

IV. Conclusion.

The district court properly granted summary judgment. We vacate

the decision of the court of appeals and affirm the decision of the district

court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.