Rhode v. Adams

97-213

No. 97-213

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 73

RAYMOND DALE RHODE,

Plaintiff and Appellant,

v.

LOIS HALL ADAMS,

Defendant and Respondent.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John L. Hollow (argued); Attorney at Law; Helena, Montana

For Respondents:

Diana P. Leibinger-Koch (argued), Attorney at Law,
Helena, Montana (for Respondent Adams)

For Amicus Curiae:

Patricia O'Brien Cotter; Cotter & Cotter, P.C.; Great Falls,
Montana(for Montana Trial Lawyers Association); Robert W. Minto, Jr.; Attorneys
Liability
Protection Society; Missoula, Montana; and John R. Gordon; Reep, Spoon & Gordon, P.
C.;
Missoula, Montana (for Attorneys Liability Protection Society); W. Corbin Howard;
Attorney at Law; Billings, Montana
(for Child and Family Law Section, State Bar of Montana)

Heard: January 20, 1998

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Submitted: January 21, 1998
Decided: April 3, 1998
Filed:

_________________________________________
Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 Raymond Dale Rhode brought this action in the District Court for the
First Judicial District in Lewis and Clark County to recover damages caused
by the violation of his civil rights by the Honorable Dorothy McCarter,
District Judge of the First Judicial District, and by the violation of his right to
procedural due process by Lois Hall Adams, the attorney who represented his
wife in the parties' dissolution of marriage action. Rhode moved the District
Court for an order which would allow him to amend his allegations against
Adams and add his minor children as plaintiffs. The District Court denied
Rhode's request and granted the defendants' motions to dismiss. Rhode
appeals from the District Court's denial of his motion to add his children as
plaintiffs and, necessarily, from the District Court's dismissal of Adams. We
affirm the order and judgment of the District Court.

¶2 The issues raised on appeal are whether, by adding Rhode's children as
defendants, his amended complaint would have stated a cause of action against
Adams, and whether the District Court, therefore, erred when it denied
Rhode's motion to file an amended complaint.
STATEMENT OF FACTS

¶3 Raymond Dale Rhode was married to Kelly Lynn Lazenby in 1984.
Three children were born of that marriage. They are now thirteen, eleven, and
eleven years old, respectively. Rhode and Lazenby were divorced and then
remarried in LeGrande, Oregon. The couple remained married until January
28, 1991, when they divorced in Montgomery County, Tennessee. It is not
clear from the record who was awarded custody following the second divorce.
However, Rhode obtained physical custody of the children and moved with
them to Townsend, Montana.

¶4 According to Rhode, on May 11, 1993, his three children did not return
from school to his home in Townsend. Rhode learned from the sheriff of
Broadwater County that Lois Hall Adams, Lazenby's attorney, had obtained
Judge Dorothy McCarter's signature on an order which, based on the decree
of the Tennessee court, awarded sole custody of the couple's children to
Lazenby. Adams gave the order to the sheriff who then presented it to the
school administrator at the children's school, removed the children from the
school, and handed them over to Lazenby. Lazenby immediately left the state
of Montana with the children.

¶5 On July 14, 1993, the Honorable Jeffery Sherlock, District Judge of the
First Judicial District, overturned Judge McCarter's order. Judge Sherlock
found that Rhode was not afforded adequate notice and opportunity to be
heard before Judge McCarter issued her order.

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¶6 In this action, Rhode alleged that Judge McCarter violated his civil
rights because she was without jurisdiction to grant Lazenby custody of the
children. He also contended that Adams is liable to him because she breached
her duty to comply with Montana law. As a result of Judge McCarter's and
Adams' actions, Rhode claimed to have expended a considerable amount of
time, money, and energy in his efforts to locate and reestablish contact with
his children after Judge McCarter's order was quashed.

¶7 Rhode moved the District Court for an order which would allow him
to amend his complaint by adding as plaintiffs the parties' children and setting
forth factual allegations that Adams owed a duty to the children. Rhode's
amended complaint would have alleged that Adams was negligent when she
obtained the order because she failed to follow the laws and procedures that
are intended to prevent the harm that was caused to the children. Rhode
maintains that one of the children was physically and sexually abused while
the children were with Lazenby both prior to this incident and after Lazenby
removed the children from Montana. According to Rhode, but for the
unlawful order that Adams sought and received from Judge McCarter,
Lazenby would not have had the means to obtain physical custody of the
children.

¶8 On December 18, 1996, Judge Thomas Honzel denied Rhode's request
to file an amended complaint. The court reasoned that, if filed, the amended
complaint, which would add the children as plaintiffs, would not change the
outcome of the case and would instead create additional expense and
frustration for the parties. The District Court also granted Judge McCarter's,
the State of Montana's, and Adams' motions to dismiss. It concluded that
Adams owed no duty to the children because they were not her clients and that
Judge McCarter is shielded from suit by judicial immunity. Rhode, on behalf
of the parties' children, filed a notice of appeal.
STANDARD OF REVIEW

¶9 We have held that the determination that a complaint does not state a
claim upon which relief can be granted is a conclusion of law which we review
to determine whether the district court is correct. See Lockwood v. W.R. Grace
& Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317. We have further held
that the question of whether a legal duty is owed by one person to another is
a question of law. See Webb v. T.D. (Mont. 1997), 54 St. Rep. 1502, 1503.
DISCUSSION

¶10 The issue Rhode raises on appeal is whether or not the District Court
erred when it denied Rhode's motion to file an amended complaint which
would add his minor children as plaintiffs. That issue, necessarily, involves
the related issue of whether, as amended, the complaint would have stated a
cause of action against Adams. Rhode's amended complaint, had it been filed,
would have alleged that the children were injured by Adams' negligence when
she obtained the order which gave Lazenby custody of the children. Rhode
contends that Article II, Section 16, of the Montana Constitution guarantees
the children a remedy for the harm caused by Adams. That section provides
all people with a speedy remedy for every injury of person, property, or

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character. Rhode further maintains that Adams is responsible for any harm she
may have caused the children because § 27-1-701, MCA, states, except as
otherwise provided by law, "everyone is responsible . . . for an injury
occasioned to another by want of ordinary care." Rhode contends that
attorneys, including Adams, should not be an exception to that rule.

¶11 According to Rhode, the stated purposes of the Uniform Child Custody
Jurisdiction Act involve the protection of children from the harmful effects of
abduction and other unilateral removals of children, as well as to continuously
protect the best interests of the children. See § 40-7-102(e), MCA. He also
argues that one of the stated purposes of Montana's laws governing dissolution
of marriage is to mitigate the potential harm to the parties children caused by
the process of legal dissolution of marriage. See § 40-4-101(3), MCA.

¶12 We have held that in a professional negligence action, the plaintiff must
prove that the professional owed him or her a duty. See Carlson v. Morton
(1987), 229 Mont. 234, 238, 745 P.2d 1133, 1136. However, we have never
discussed whether an attorney owes a duty to third persons to exercise care in
the performance of services for his or her client.

¶13 Although Rhode concedes that there are no prior Montana decisions
which create a duty from an attorney to someone other than his or her client,
he relies on the following decisions from other jurisdictions: Goldberg v. Frye
(Cal. 1990), 266 Cal Rptr. 483; Neal v. Baker (Ill. App. Ct. 1990), 551 N.E.2d
704, appeal denied (Ill. 1990), 555 N.E.2d 378; Trask v. Butler (Wash. 1994),
872 P.2d 1080. Each of these jurisdictions takes a slightly different approach
to the issue of an attorney's duty to a non-client. Rhode urges this Court to
adopt the test and rule set forth in Trask.

¶14 In Trask, the Supreme Court of Washington adopted California's multi-factor
balancing test to determine whether an attorney owes a duty to a non-client. The
multi-factor balancing test involves an analysis of the following
six factors:
(1) the extent to which the transaction was intended to affect the
plaintiff;

(2) the foreseeability of harm to the plaintiff;

(3) the degree of certainty that the plaintiff suffered injury;

(4) the closeness of the connection between the defendant's conduct
and the injury;

(5) the policy of preventing future harm; and

(6) the extent to which the profession would be unduly burdened by
a finding of liability.

Trask, 872 P.2d at 1083. According to the Trask court, the first and threshold
inquiry in the multi-factor balancing test is whether the attorney's services
were intended to affect the plaintiff. See Trask, 872 P.2d at 1083.

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¶15 In Trask, the court analyzed the multi-factor balancing test within the
context of the duty a personal representative's attorney owes to the estate, or
to the beneficiaries of the estate, and found that no duty is owed. See Trask,
872 P.2d at 1085. The court explained that the multi-factor balancing test does
not impose legal malpractice liability upon the personal representative's
attorney, in part because "the unresolvable conflict of interest an estate
attorney encounters in deciding whether to represent the personal
representative, the estate, or the estate heirs unduly burdens the legal
profession." Trask, 872 P.2d at 1085. The court held that the multi-factor
balancing test also requires an evaluation of public policy before a court can
find a duty to a third party. It explained that the policy considerations which
weigh against finding a duty to a non-client are the strongest when doing so
would detract from the attorney's ethical obligations to the client. See Trask,
872 P.2d at 1085. It described such a situation as one in which a duty to a
non-client creates a risk of divided loyalties because of a conflicting interest
or of potential for breach of confidence. According to the Trask court,
conflicts of interest arise in estate matters whenever the interest of the personal
representative is not harmonious with the interest of an heir and, thus, the
estate proceedings become adversarial. See Trask, 872 P.2d at 1085.

¶16 Rhode contends that in this case all of the elements of the Trask
multi-factor test are present and there is no danger of a division of loyalties. He
maintains that if a division of loyalty arises, the attorney may request that
counsel be appointed for the children.

¶17 We conclude, however, that while a multi-factor balancing test, such
as that set out in Trask, may be effective when used to address the duties of
attorneys in transactional matters or estate planning and probate practice, this
model is not appropriate to define an attorney's duties while representing
clients in adversarial proceedings. In a disputed child custody case, for
example, there would be substantial risk of divided loyalties between the client
and the children.

¶18 California and Washington, the leading proponents of the multi-factor
test, also recognize that this test does not apply in adversary situations. See
Norton v. Hines (Cal. 1975), 123 Cal. Rptr. 237; Bowman v. John Doe Two
(Wash. 1985), 704 P.2d 140. In Bowman, the Washington Supreme Court
recognized that the "[e]xistence of a duty to an adverse party beyond the
courtesy and respect owed all participants in the legal process would interfere
with the undivided loyalty an attorney owes a client and would diminish an
attorney's ability to achieve the most advantageous position for a client."
Bowman, 704 P.2d at 144 (citation omitted).

¶19 Other jurisdictions have similarly found that to place a duty upon an
attorney to a non-client in an adversarial situation would inhibit free access to
the courts by unduly inhibiting attorneys from bringing close cases, innovative
theories, or suing defendants who might retaliate. See Friedman v. Dozoroc
(Mich. 1981), 312 N.W.2d 585. As the Friedman court explained, an adverse
party has no basis for reliance on the actions of an adversary's counsel and that
fact distinguishes an attorney's relationship from the third-party relationship

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of other professions. See Friedman, 312 N.W.2d at 593-94.

¶20 The Colorado Court of Appeals found that an attorney representing a
parent in a contested custody proceeding does not per se also represent the
children's interests. See McGee v. Hyatt Legal Services, Inc. (Colo. App.
1990), 813 P.2d 754. That court held that when custody is contested by each
parent, such that the best interests of the child may be contrary to the parents'
wishes, the duty of the attorney to represent his or her client zealously and
ethically is inconsistent with any duty he or she might owe to the child. See
McGee, 813 P.2d at 757. The McGee court further explained that this
principal is implicitly recognized in Colorado's statute which permits the court
to appoint an attorney to represent the minor child concerning custody,
support, and visitation. See McGee, 813 P.2d at 757.

¶21 We agree that an attorney must be able to vigorously advocate his or
her client's interests in litigation without being compromised by obligations to
non-clients. Such vigorous representation of a client is an essential part of the
adversarial system. See Rules 1.2, 1.7, 1.9, and 3.1, Montana Rules of
Professional Conduct. This is not to say that an attorney who represents a
parent in a contested child custody case should not advise his or her client to
consider what is best for the children, and to work within the proper legal and
ethical parameters when litigating custody and visitation. Nor are children
without other protections. See § 40-4-205, MCA (appointment of guardian ad
litem), and § 40-4-212, MCA (best interest of child to determine parenting
plan). Furthermore, if the conduct of the attorney-advocate rises to the level
of deceit, collusion, or intentionally reckless conduct, an injured party is
entitled to recover treble damages (see § 37-61-406, MCA), and, under other
limited circumstances, the attorney may be liable for malicious prosecution or
abuse of process. See Hopper v. Drysdale (D. Mont. 1981), 524 F. Supp.
1039; Davis v. Sheriff (1988), 234 Mont. 126, 762 P.2d 221; Vehers v.
Piquette (1984), 210 Mont, 386, 684 P.2d 476. However, we conclude that if
an attorney owes the same duty of care to both the parent and the children, he
or she will be able to serve neither effectively.

¶22 As stated by the court in Friedman, 312 N.W.2d 585, when the
professional relationship between an attorney and a client is placed within an
adversarial context in which the attorney functions as the advocate for the
client, the attorney has a different relationship to non-clients than do members
of other professions. This distinction is what differentiates this type of case
from one involving non-client relationships with doctors, probate and estate
planning attorneys, accountants, realtors, architects, and other similarly
situated professionals.

¶23 We therefore conclude that because the interests of a parent and those
of a child in a child custody case may not be identical, the attorney's duty runs
solely to his or her client, except as otherwise specified in this opinion.

¶24 Accordingly, we conclude that the District Court did not err when it
denied Rhode's motion to file an amended complaint. The judgment of the
District Court is, therefore, affirmed.

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/S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ JOHN S. HENSON
District Court Judge, sitting for Justice W. William Leaphart
/S/ THOMAS M. McKITTRICK
District Court Judge, sitting for Justice Karla M. Gray

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