Spencer v. Barber

Paul Barber and his law firm, Barber & Borg, L.L.C. were the attorneys for Ellen Sam. Barber filed a lawsuit against numerous defendants for injuries Sam sustained when her car was struck from behind on Interstate 40. Barber also represented Sam in her capacity as the personal representative of the estates of her daughter and granddaughter, both of whom died from injuries they sustained in the collision. At some time during his representation of Sam, Barber learned that Sam had been drinking alcohol before the collision and that she had "parked at night with the lights off in a lane of traffic on [I-40], following which the car was struck by a truck." Barber also learned at some time during the litigation that Sam, who was a statutory beneficiary of her daughter's estate, took the position that the other statutory beneficiary, her ex-husband, Herman Spencer, was not entitled to share in any wrongful death proceeds because he had abandoned their daughter. Based on Sam's position, Barber approached Spencer in person with a settlement agreement, which Spencer ultimately signed, that reduced Spencer's entitlement to proceeds from the wrongful death litigation. Spencer later challenged the validity of the agreement. Barber filed a lawsuit against Spencer on Sam's behalf to enforce the agreement. Spencer counterclaimed against Sam and filed a third-party complaint against Barber for malpractice, fraud, collusion, and misrepresentation. The district court granted Barber summary judgment on the grounds that Barber did not owe a duty to Spencer as a statutory beneficiary because Spencer and Sam were adverse parties, and Barber represented Sam. The Supreme Court granted certiorari to consider the following two questions: (1) "[w]hether the duties a lawyer owes wrongful death statutory beneficiaries are governed by the Rules of Professional Conduct"; and (2) "[w]hether an adversarial relationship precludes only contract based malpractice claims and not independent tort claims." Upon review, the Supreme Court ruled that: (1) the Rules of Professional Conduct provide guidance in determining lawyers' obligations to their clients, and that the statutory beneficiary may sue the personal representative's attorney when the attorney harms the statutory beneficiary by failing to exercise reasonable skill and care during the attorney's representation of the personal representative; (2) the adversarial exception may preclude a malpractice action, whether it is in tort or in contract, and that in this case, the adversarial exception does not preclude Spencer's malpractice claim against Barber because there existed genuine issues of material fact regarding whether Barber failed to exercise reasonable skill and care in his representation of Sam as the personal representative, and if so, whether such failure harmed Spencer. View "Spencer v. Barber" on Justia Law