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.
2
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.
12
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, an 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
provide additional protection. See Iowa R. Prof’l Conduct 32:1.7; see also
13
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
reasonably relied on the attorney to represent the personal interests of
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
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
had drafted the assignment. Id. at 611. In response to the challenge by
the beneficiary to the validity of the assignment during the
15
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
in the record that would permit a reasonable fact finder to conclude
Ackerman was reasonably alerted that Diean was relying on him to
16
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
for estate attorneys to follow. A better practice, however, does not
necessarily describe a legal responsibility for an attorney. Additionally, a
17
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.