Trotter v. Nelson

*1156SULLIVAN, Justice,

concurring and disenting.

I respectfully dissent from the majority’s conclusion that the trial court erred in denying summary judgment in this case.

I do not agree that the alleged agreement here is unenforceable under applicable precedent. I do agree with the majority that our Rules of Professional Conduct are the equivalent of statutes in our constitutional sphere and, as such, constitute public policy. I likewise agree that agreements which contravene our Rules are tantamount to “agreements that contravene statute” under Continental Basketball Ass’n, Inc. v. Ellenstein Enters., Inc., 669 N.E.2d 134, 139 (Ind.1996). However, Continental Basketball provides the following guidance in determining whether an agreement contravenes statute:

[Bjecause we value the freedom to contract so highly, we will not find that a contract contravenes a statute unless the language of the implicated statute is so clear and unambiguous that the legislature intended that the courts not be available for either party to enforce a bargain made in violation thereof.

Id. at 140. Neither of the Rules of Professional Conduct implicated here give any indication that the courts are not available to enforce such bargains.

Rather, I would find that the alleged agreement here falls within another category of contracts discussed by the majority, “agreements that are otherwise contrary to the declared public policy of Indiana.” Majority Op. at 1153 (citing Continental Basketball Ass’n, 669 N.E.2d at 139). As the majority points out, the inquiry under this category requires the balancing of five factors. Id. Without belaboring the analysis, I would find that, to the extent Trotter committed himself financially to Nelson, this balancing of factors does not relieve him of his obligation to her. More generally, the purposes of the Rules of Professional Conduct at issue here are to protect the lawyer’s professional judgment, Ind.Professional Conduct Rule 5.4; and to protect the process of informed selection of a lawyer by potential consumers of legal services, Prof.Cond.R. 7.3. Absolving Trotter of any obligation that he has to Nelson under the alleged agreement does not further either of these purposes.

I do concur with the majority to the extent that it finds that summary judgment on this issue does not preclude Nelson from pursuing Trotter on one or more other legal theories. Majority Op. at 1155 & n. 7.