concurring in result.
I take a more expansive view of the professional obligations that the Flatow Defendants owed their client regarding the defamation claim than my colleagues, but I agree with their ultimate conclusion that Ingalls has failed to show any legal argument that the Flatow Defendants should have made or evidence that they should have designated in response to the summary judgment motion. As a result, I concur in the result that my colleagues reach.
My colleagues conclude that the "Contract to Hire Attorney" between Ingalls and the Flatow Defendants limited the representation to "drafting a motion for *733summary judgment and a reply brief as to that matter." Opinion, p. 730. I do not believe the representation was so limited.
In the contract, the Flatow Defendants agreed to represent Ingalls "in his defamation claim against his former employer (AES) and/or employees of his former employer." Appellants' Appendix, p. 101. While they specifically agreed to "draft a motion for summary judgment and a reply brief" in the matter, the seope of their representation was not limited to such activities. Id. Indeed, they specifically agreed that their "representation in this matter includes inception of the matter through the end of trial." Id.
To me, the correct interpretation of the attorney contract was that although the Flatow Defendants limited their representation Ingalls to his defamation claim, they did not limit their representation of that defamation claim. To the contrary, they agreed to represent Ingalls on the defamation claim to "the end of trial." While my colleagues say that an attorney cannot be negligent for failing to do what there was no duty to do, I believe that the Flatow Defendants had the express duty to represent Ingalls on his defamation claim and to take all steps required by the applicable standard of care regarding the summary judgment proceedings and, thereafter, through to the end of trial
That said and as previously noted, In-galls fails to put before us any legal argument that should have been advanced or evidence that should have been designated in response to the summary judgment motion. Therefore, I concur in result.