                                                                            Apr 22 2015, 9:36 am




      ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      David T. Kasper                                             Jon R. Pactor
      Julia Blackwell Gelinas                                     Indianapolis, Indiana
      Maggie L. Smith
      Frost Brown Todd LLC
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Timothy Devereux,                                           April 22, 2015

      Appellant/Cross-Appellee/Defendant,                         Court of Appeals Case No.
                                                                  49A02-1404-CT-260
              v.                                                  Appeal from the Marion Superior
                                                                  Court
                                                                  The Honorable Patrick L. McCarty,
      Jim and Diana Love,                                         Judge
      Appellees/Cross-Appellants/Plaintiffs                       Cause No. 49D03-1209-CT-35875




      Bradford, Judge.



                                            Case Overview
[1]   One of the blocks of the foundation of America is an individual’s ability to seek

      to right a wrong through the courts of justice. In a civil case, a plaintiff entrusts

      his plight and cause to his attorney. The instant matter involves the disturbing

      tale of a husband and wife whose confidence and trust was betrayed by the very

      Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015                     Page 1 of 24
      attorney to which they had entrusted their cause of action. The just and normal

      inclination in such a matter is to punish the wrongdoer and make the victims

      whole. While William Conour, i.e., the wrongdoer, has been punished and

      now occupies his appropriate place in federal prison, to date, it appears that

      these victims have not been made whole for the misdeeds inflicted upon them.


[2]   In an attempt to redress this wrong, Appellees/Cross-Appellants/Plaintiffs Jim

      and Diana Love (collectively, the “Loves”) now seek relief from

      Appellant/Cross-Appellee/Defendant Timothy Devereux, a former member of

      Conour’s law practice. However, in light of the facts of this particular case, we

      find that Devereux satisfied his legal duty to the Loves based on his lack of

      knowledge of any specific wrongdoing by Conour relating to the Loves. We

      therefore reverse the judgment of the trial court in this regard and remand the

      matter to the trial court with instructions that the trial court grant summary

      judgment in favor of Devereux.



                             Facts and Procedural History
                        I. William Conour, the “Wrongdoer”
[3]   On April 27, 2012, William Conour “was charged by criminal complaint in the

      United States District Court for the Southern District of Indiana with

      misappropriating client funds in violation of 18 U.S.C. § 1343.” Minnesota

      Lawyers Mut. Ins. Co. v. Conour, No. 1:12-CV-1671-WTL, 2014 WL 5089290, at

      *1 (S.D. Ind. Oct. 8, 2014). “The complaint alleged, in part, that Conour ran a

      so[-]called ‘Ponzi scheme’ with clients’ settlement funds and converted a large
      Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 2 of 24
      portion of those settlement funds to his own use and benefit.” Id. “Shortly

      thereafter, the Disciplinary Commission of the Supreme Court of Indiana

      instituted disciplinary proceedings against Conour.” Id. “Conour eventually

      resigned from the Indiana Bar.” Id. On June 29, 2012, the Indiana Supreme

      Court issued a published order accepting Conour’s resignation from the Indiana

      Bar. In re Conour, 969 N.E.2d 1008 (Ind. 2012). On August 13, 2012, the

      United States Supreme Court issued an order suspending Conour from

      practicing law before the Court. In re Discipline of Conour, 133 S. Ct. 88 (2012).

[4]           On July 15, 2013, Conour pled guilty to one count of wire fraud.
              During his change of plea hearing, he admitted that:
                       Beginning as early as 1999 and continuing through April
                       2012, in Hamilton and Marion Counties and elsewhere in
                       the Southern District of Indiana, [he] ... knowingly
                       devised and participated in a scheme to defraud and to
                       obtain money and funds from his clients and others by
                       means of materially false and fraudulent pretenses,
                       representations, and promises ...
                       It was part of the scheme that after receiving settlement
                       funds on behalf of some clients, [he] convinced the clients
                       to accept monthly payments over a period of years rather
                       than to accept a lump sum payment. [He] created trust
                       accounts for the clients through State Bank & Trust, doing
                       business as Reliance Financial Services, and Ohio
                       Financial Institution, to facilitate the monthly payments.
                       Rather than depositing the entire amount of settlement
                       funds with Reliance, [he] funded the trusts only on a
                       yearly basis, thereby unlawfully keeping for his own use
                       and benefit the bulk of the settlement proceeds totaling
                       more than $3 million.
                       It was further part of the scheme that after receiving
                       settlement funds on behalf of some clients, [he] failed to
                       notify the clients that he had received settlement funds on

      Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015       Page 3 of 24
                       their behalf, and in some cases falsely denied that he had
                       received any settlement funds. Thereafter, [he]
                       unlawfully converted the settlement funds to his own use
                       and benefit and, in part, used the settlement funds
                       obtained for some clients to make settlement payments to
                       other clients.
                       It was further part of the scheme that [he] stole,
                       misappropriated, and unlawfully converted to his own use
                       more than $4,500,000 belonging to more than 25 clients.
                       On or about October 6, 2011, in the Southern District of
                       Indiana and elsewhere, [he], for the purpose of executing
                       the above-described scheme, knowingly caused to be
                       transmitted in interstate commerce, by wire
                       communication, certain writings, signs, and signals,
                       namely a facsimile transmission from his office in
                       Indianapolis, Indiana to Zurich American Insurance in
                       New Jersey, which contained [a client’s] release and
                       indemnification agreement.
              Dkt. No. 155–5 at 12–14. Conour was thereafter sentenced to 120
              months in prison and ordered to pay restitution to the client-victims.


      Conour, No. 1:12-CV-1671-WTL, 2014 WL 5089290, at *1-2.


                     II. Conour’s Representation of the Loves
[5]   On May 13, 2008, Jim was injured at work. A few months later, in August of

      2008, the Loves hired Conour Law Firm (the “Firm”) to represent them in a

      personal injury lawsuit against Meyer & Najem Construction, LLC.

      Unfortunately, the Loves subsequently became victims of Conour’s above-

      described illegal acts when he settled their personal injury lawsuit without their

      knowledge in February of 2012.




      Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015         Page 4 of 24
          III. Devereux’s Representation of the Loves and the
          Termination of Devereux’s Employment at the Firm
                   A. Events Occurring Prior to December of 2011
[6]   In February of 2008, Devereux joined the Firm as an Associate Attorney.

      Devereux was subsequently assigned, by Conour, to work with Conour on the

      Loves’ personal injury case.


[7]   In early July of 2010, the Loves received a letter dated July 1, 2010, which read

      as follows:

              We are pleased to introduce you to the new law firm of Conour
              Devereux Hammond[1] which is taking over the cases and business of
              Conour Law Firm, LLC. Of course, you already know all of us
              because we have been working with you on your case since its
              beginning. Your existing contract with the Conour Law Firm will be
              fully honored by the new firm and we are continuing to represent you
              as your attorneys.

              Conour Devereux Hammond will represent you in the same
              professional and excellent manner as the Conour Law Firm.
              However, upon the formation of a new law firm, even though it may
              include the same lawyers as the previous law firm, we are required by
              the Indiana Rules of Professional Conduct for Attorneys to give you
              the option of selecting other counsel to represent you.

              We presume you will want us to continue as your attorneys and, if that
              is true, then you do not have to respond to this letter; but if you do
              wish to find other counsel you must notify us within ninety (90) days
              of the date of this letter.




              1
                  We will continue to refer to this new firm as the “Firm.”

      Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015        Page 5 of 24
              We look forward to continuing to work with you to the conclusion of
              your claim. If you have any questions or wish to discuss this matter,
              please call any one of us. Thanks.


      Appellant’s App. p. 67.2 The letter was signed by Conour, Devereux, and

      Jeffrey Hammond. Despite the July of 2010 change of the Firm name to

      include Devereux’s name, Devereux subsequently averred, without contest, that

      he never had any ownership interest in the Firm, that he was never a signatory

      on any of the Firm’s bank accounts, and was not provided access to any of the

      Firm’s financial records.


                   B. Events Occurring During December of 2011
[8]   At some point in December of 2011, Devereux decided to terminate his

      employment with the Firm due to concerns he had regarding Conour’s failure

      to timely pay expenses and expert witness fees, which was hampering

      Devereux’s ability to adequately and timely prepare cases for trial in cases other

      than the Loves’ matter. In addition, on December 21, 2011, after deciding to

      leave the Firm, Devereux became aware that a Case Verification Report, which

      had been prepared by Conour and sent to Advocate Capital,3 contained

      inaccurate and misleading information. Also on December 21, 2011, Devereux




              2
                It appears that the Loves elected to stay with the Firm as Devereux and Conour
      continued to represent the Loves in their personal injury case.



              3
                It appears that Advocate Capital is a company that had a financial interest in certain
      of the Firm’s cases because it advanced litigation expenses to the Firm for said cases.

      Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015             Page 6 of 24
       became aware that Conour had not delivered the settlement proceeds from a

       wrongful death case to a client, the settlement for which had been approved by

       the trial court in early June of 2011.


[9]    Devereux resigned from his position of employment with the Firm on

       December 22, 2011. On this date, Devereux delivered a letter to Conour which

       read: “I am terminating my employment with your law firm effective December

       22, 201[1].… In addition, please remove me from the firm’s name immediately

       including but not limited to the firm’s letter head, the firm’s website, all signage

       at the office and all marketing materials.” Appellant’s App. p. 120.


[10]   Devereux averred that based upon his experience with the Firm, “whenever an

       attorney left their employment with the Firm, the Firm would prepare and file

       Withdrawals of that attorneys [sic] Appearance on all of the Firm’s cases.”

       Appellant’s App. p. 111. Devereux further averred that he “saw this practice

       occur firsthand after both John Daly and Jeffrey Hammond left their

       employment as attorneys with the [Firm].” Appellant’s App. p. 111. Devereux

       also averred that it was his understanding that, upon his resignation, the Firm

       did prepare and file withdrawals of his appearance on all of the Firm’s cases

       and that he was advised by the office staff at the Firm that the withdrawals of

       his appearance had, in fact, been prepared shortly after he resigned.


[11]   On December 23, 2011, Conour informed the Loves, via letter, that Devereux

       was “no longer an employee with [Conour’s] law firm.” Appellant’s App. p.

       101. The December 23, 2011 letter further stated:


       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 7 of 24
               Not always, but occasionally when an attorney leaves a law firm he or
               his new employer may contact the law firm’s clients to try to convince
               the client to let the attorney take their file rather than leave it with the
               law firm they were referred to in the first place. I don’t know if Mr.
               Devereux will attempt to contact you to take your case, but he might.
               You are not to be contacted in person or by phone but only by letter
               should he attempt to contact you. You have the choice to remain with
               me in my firm where you were first referred or to have your file sent to
               Mr. Devereux whenever he finds new employment or to have your file
               sent to a new attorney. Of course, I think it is in your best interest to
               remain with me since we have handled your case from the beginning
               and you were referred to me and no one else.

               For your convenience I have enclosed a form for you to indicate
               whether you wish me and my firm to remain your attorneys or if you
               want your file sent to Mr. Devereux or some other attorney. I have
               also enclosed a stamped, self-addressed envelope for returning the
               dated and signed form to me. I am sorry to bother you with this
               during the holiday season but it is best to get this settled immediately
               so we do not have any gaps in your legal representation.


       Appellant’s App. p. 101. The Loves subsequently signed the form indicating

       that they wished for Conour and the Firm to continue to represent them.


[12]   After leaving the Firm, Devereux joined the law firm of Ladendorf &

       Ladendorf. On December 29, 2011, Devereux sent a letter to the Loves in

       which he informed them that he was no longer employed by the Firm. The

       December 29, 2011 letter also stated the following:

               I am pleased to let you know that Julie Durbin and I have joined the
               law firm of Ladendorf & Ladendorf in Indianapolis, Indiana.
               Ladendorf & Ladendorf is a well-respected firm with an excellent
               reputation of experience, commitment, dedication and aggressive
               representation of its clients. We are very excited about this
               opportunity and the ability to continue working together. We are also
               very interested in continuing to represent you on your case. As you

       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015           Page 8 of 24
               know, we have been involved in the preparation and prosecution of
               your case.

               Under Indiana law, you have the absolute right to use the attorney of
               your choice and I would be glad to continue to represent you in the
               future should you wish. In the event that you do chose to have me
               continue to represent you with the assistance of Julie, the amount of
               the attorney fees set forth in the original Attorney Fee Agreement will
               remain the same. You need only send a letter to the Conour Law
               Firm advising it that you have chosen to have me continue to represent
               you on your case along with Julie’s assistance.

               On behalf of Julie and myself, it has been a privilege and a pleasure
               getting to know you and we look forward to continuing to work with
               you on your case in the future. Should you have any questions or
               concerns regarding your choice, please feel free to contact Julie or me
               at your convenience.


       Appellant’s App. p. 126. Devereux received no response from the Loves

       regarding the December 29, 2011 letter.


                     C. Events Occurring After December of 2011
[13]   On January 20, 2012, Devereux received an email from Conour in which

       Conour informed him that other than a few specifically named clients, the

       remainder of the clients had chosen to remain with the Firm. Conour also

       instructed Devereux to have no further contact with clients represented by

       Conour or the Firm. The Loves were not one of the specifically mentioned

       clients, but rather were among the group of clients that had chosen to remain

       with the Firm.


[14]   Sometime in early April of 2012, Devereux was contacted by the clerk of

       Hendricks County Superior Court 4 regarding an upcoming pre-trial conference

       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015          Page 9 of 24
       that was scheduled in the Loves’ case. Devereux averred that this contact was

       when he first learned that the Firm had not filed his withdrawal in the Loves’

       case. Devereux immediately filed a request to withdraw his appearance in the

       Loves’ case.


         IV. Devereux’s Cooperation with the Indiana Supreme
           Court Disciplinary Commission (the “Disciplinary
         Commission”) and the Federal Bureau of Investigation
                              (the “FBI”)
[15]   On December 27, 2011, Devereux contacted the Indiana Supreme Court

       Disciplinary Commission (the “Disciplinary Commission”) to request a

       meeting regarding his concerns relating to Conour. On December 30, 2011,

       Devereux submitted a letter to the Disciplinary Commission setting forth his

       concerns regarding Conour. Devereux also repeated his request for a meeting

       with the Disciplinary Commission to discuss his concerns.


[16]   On January 9, 2012, Devereux was contacted by Special Agent Doug Kasper of

       the FBI and was asked to assist the FBI in an ongoing investigation of Conour.

       That same day, Devereux met with Special Agents Kasper and Andrew Shank

       and learned that the FBI was investigating Conour for failing to properly fund

       annuities for clients arising out of personal injury settlements generated by cases

       handled by the Firm. Devereux subsequently met with Special Agents Kasper

       and Shank several times over the next two-to-three weeks and assisted them in

       their investigation. Devereux averred that to his knowledge, the conduct being



       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 10 of 24
       investigated by the FBI related only to the funding of structured settlements and

       did not involve any other potential wrongdoing.


[17]   Devereux met with Michael Witte and Robert Shook of the Disciplinary

       Commission on January 10, 2012. During this meeting, Devereux reported his

       concerns regarding Conour as were outlined in his December 30, 2011 letter.

       Devereux also shared the information that he had learned from his meeting

       with FBI Special Agents Kasper and Shank the day before regarding the FBI’s

       suspicions that Conour was not properly funding clients’ annuities.


[18]   On February 24, 2012, Devereux became aware that Conour had settled a case

       without the clients’ knowledge after he contacted the insurance adjuster

       assigned to the case to inform the adjuster that he was taking over from the

       Firm. During the conversation, the adjuster informed Devereux that Conour

       had settled the case in October of 2011, that the adjuster had received a signed

       release from Conour, and that the settlement draft of $450,000.00 had been

       deposited by Conour in October of 2011. The adjuster emailed Devereux a

       copy of the release provided to him by Conour and a copy of the cancelled

       check.


[19]   Later that day, Devereux met with the clients and showed them the

       documentation provided by the adjuster. The clients confirmed that they had

       never seen or signed the release in question and had never given Conour

       authority to settle their claim. The clients further confirmed that they had never

       been informed by Conour that their case had been settled or received any


       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 11 of 24
       settlement payment. After speaking with the clients, Devereux contacted both

       the FBI and the Disciplinary Commission to report the newly learned

       information.


           V. Devereux Notified that Conour Settled the Loves’
                     Case Without Their Consent
[20]   On July 20, 2012, the Loves’ current counsel sent Devereux a letter informing

       him that Conour had settled the Loves’ case in February of 2012, without the

       Loves’ consent or knowledge, for the sum of $120,000. The letter indicated that

       the settlement check was dated February 9, 2012, that Conour deposited the

       check into his IOLTA trust account, and that the check cleared on February 9,

       2012. The letter further indicated that Conour asked the Loves to sign a

       settlement disbursement sheet in May of 2012, but that they had not, to date,

       received any settlement funds.


[21]   The July 20, 2012 letter also asserted that Devereux, in his position as one of

       the Loves’ counsel of record, had a duty to inform the Loves of his knowledge

       that Conour “was in serious ethical and criminal predicaments and that the

       Loves were in peril of being victimized.” Appellant’s App. p. 129. The letter

       alleged that Devereux had breached this duty and threatened Devereux with a

       malpractice action if he did not pay the Loves the proceeds of the settlement

       “that they should have received and for the proceeds that may not have been

       paid to third parties such as lien holders.” Appellant’s App. 129.




       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 12 of 24
[22]   Devereux subsequently responded to the July 20, 2012 letter. In his response,

       Devereux stated that at the time he terminated his employment with the Firm,

       he “had no reason to know, did not know and could not have known that

       [Conour] would settle a client’s case without their knowledge and then keep the

       settlement proceeds for himself.” Appellant’s App. p. 111. Devereux also

       asserted that (1) he did not owe the claimed duty to the Loves as, at the time he

       terminated his employment with the Firm, he did not have knowledge that

       Conour was facing serious ethical and criminal predicaments that would place

       the Loves at peril for being victimized; and (2) any duty owed to the Loves was

       extinguished when his representation of the Loves ended when he terminated

       his employment at the Firm.


[23]   In making these assertions, Devereux indicated that he had no access to any

       part of the Loves’ case file or materials after he terminated his employment at

       the Firm on December 22, 2011, and that he had not had any involvement in

       the Loves’ case since that date. Devereux further indicated that he was not

       aware of and did not participate in the February 2012 settlement of the Loves’

       case, was not copied on any correspondence between the Firm and counsel for

       the defendant, and was not aware that the Loves’ case had been settled by the

       Firm until he was contacted by the Loves’ current counsel on July 20, 2012.


                                       VI. Procedural History
[24]   On September 12, 2012, the Loves filed an action against Devereux. In their

       Amended Complaint, the Loves alleged that Devereux had breached certain


       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 13 of 24
       duties owed to them by not informing them of his suspicions regarding

       Conour’s conduct when Devereux terminated his employment at the Firm.

       The parties subsequently filed competing motions for summary judgment. The

       Loves and Devereux both filed motions to strike certain affidavits submitted by

       the other party. On February 10, 2014, following a hearing, the trial court

       denied the parties’ competing motions for summary judgment and motions to

       strike.


[25]   Devereux subsequently requested that the trial court certify its interlocutory

       order for appeal. On March 17, 2014, the trial court certified its February 10,

       2014 order for interlocutory appeal over the Loves’ objection. On May 23,

       2014, we granted Devereux’s motion to accept jurisdiction of interlocutory

       appeal. This interlocutory appeal follows.



                                                 Discussion
                                       I. Summary Judgment
                                        A. Standard of Review
[26]   Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary

       judgment is appropriate when there are no genuine issues of material fact and

       when the moving party is entitled to judgment as a matter of law. Heritage Dev.

       of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 887 (Ind. Ct. App.

       2002).




       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 14 of 24
               “On appeal from the denial of a motion for summary judgment, we
               apply the same standard applicable in the trial court. Summary
               judgment is appropriate only if there is no genuine issue as to any
               material fact and the moving party is entitled to judgment as a matter
               of law. Ind. Trial Rule 56(C). We therefore must determine whether
               the record reveals a genuine issue of material fact and whether the trial
               court correctly applied the law. A genuine issue of material fact exists
               where facts concerning an issue, which would dispose of the litigation
               are in dispute, or where the undisputed material facts are capable of
               supporting conflicting inferences on such an issue. If the material facts
               are not in dispute, our review is limited to determining whether the
               trial court correctly applied the law to the undisputed facts. When
               there are no disputed facts with regard to a motion for summary
               judgment and the question presented is a pure question of law, we
               review the matter de novo.”


       Clary v. Lite Machines Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006) (quoting

       Bd. of Tr. of Ball State Univ. v. Strain, 771 N.E.2d 78, 81-82 (Ind. Ct. App. 2002)

       (internal quotation marks and some citations omitted)).


[27]   “‘In reviewing cross-motions for summary judgment, we consider each motion

       separately.’” Alva Elec., Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d 263,

       267 (Ind. 2014) (quoting Girl Scouts of S. Ill. v. Vincennes Ind. Girls, Inc., 988

       N.E.2d 250, 253 (Ind. 2013)).

               A party seeking summary judgment bears the burden to make a prima
               facie showing that there are no genuine issues of material fact and that
               the party is entitled to judgment as a matter of law. American
               Management, Inc. v. MIF Realty, L.P., 666 N.E.2d 424, 428 (Ind. Ct.
               App. 1996). Once the moving party satisfies this burden through
               evidence designated to the trial court pursuant to Trial Rule 56, the
               non-moving party may not rest on its pleadings, but must designate
               specific facts demonstrating the existence of a genuine issue for trial.
               Id.


       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015       Page 15 of 24
       Heritage Dev., 773 N.E.2d at 888. “On appeal, the trial court’s order granting or

       denying a motion for summary judgment is cloaked with a presumption of

       validity.” Van Kirk v. Miller, 869 N.E.2d 534, 540 (Ind. Ct. App. 2007), trans.

       denied. However, we are not limited to reviewing the trial court’s reasons for

       granting or denying summary judgment but rather may affirm the trial court’s

       ruling if it is sustainable on any theory found in the evidence designated to the

       trial court. See Alva Elec., 7 N.E.3d at 267 (citing Wagner v. Yates, 912 N.E.2d

       805, 811 (Ind. 2009)).


                                                  B. Analysis
       1. Overview of Relevant Authority Relating to the Duty Owed By an Attorney
                                       to a Client

[28]   “Under Indiana Law, the elements of legal malpractice are: (1) employment of

       an attorney, which creates a duty to the client; (2) failure of the attorney to

       exercise ordinary skill and knowledge (breach of the duty); and (3) that such

       negligence was the proximate cause of (4) damage to the plaintiff.’” Van Kirk,

       869 N.E.2d at 541 (quoting Clary, 850 N.E.2d at 430). “A defendant is entitled

       to judgment as a matter of law when the undisputed material facts negate at

       least one element of the plaintiff’s claim.” Clary, 850 N.E.2d at 430.

       “‘Proximate cause requires that there be a reasonable connection between the

       defendant’s allegedly negligent conduct and the plaintiff’s damages. Proximate

       cause requires, at a minimum, that the harm would not have occurred but for

       the defendant’s conduct.’” Id. (quoting Gates v. Riley ex rel. Riley, 723 N.E.2d

       946, 950 (Ind. Ct. App. 2000) (internal citations omitted)).

       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 16 of 24
[29]           The existence of a duty is generally a question of law for the court to
               decide. N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003).
               Where an alleged duty is well established, there is no need for a
               judicial redetermination of duty. Paragon Family Rest. v. Bartolini, 799
               N.E.2d 1048, 1053 (Ind. 2003). Whether a particular act or omission
               amounts to a breach of an attorney’s duty is generally a question of
               fact for the jury. [Oxley v. Lenn, 819 N.E.2d 851, 856 (Ind. Ct. App.
               2004)]. However, breach can become a question of law where the
               facts are undisputed and only a single inference can be drawn
               therefrom. Id.


       In re Estate of Lee, 954 N.E.2d 1042, 1046-47 (Ind. Ct. App. 2011).

[30]           It is a basic principle of professional conduct that an attorney must
               faithfully, honestly, and consistently represent the interest and protect
               the rights of his client, and that he is bound to discharge his duties to
               his client with the strictest fidelity, to observe the highest and utmost
               good faith, and to inform his client promptly of any known
               information important to him.


       Blasche v. Himelick, 140 Ind. App. 255, 260, 210 N.E.2d 378, 381 (1965)

       (internal quotation omitted).


[31]   Again, in order to succeed in a legal malpractice claim, the plaintiff must prove,

       among other things, that the attorney breached his duty to the client. Van Kirk,

       869 N.E.2d at 544 (citing Clary, 850 N.E.2d at 432). In Indiana, an attorney is

       generally required to “‘exercise ordinary skill and knowledge.’” Id. (quoting

       Rice v. Strunk, 670 N.E.2d 1280, 1284 (Ind. 1996)). An attorney also has a duty

       to protect and preserve the rights and property of his client. In re Estate of Lee,

       954 N.E.2d at 1047. In addition, an attorney “owes his client a duty, when

       withdrawing from representation, to withdraw in the manner least harmful to


       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015        Page 17 of 24
       the client in order to protect the client’s interests.” Bell v. Clark, 653 N.E.2d

       483, 490 (Ind. Ct. App. 1995).


                  2. Application of the Relevant Authority to the Instant Matter

            i. Potential Breach Committed Prior To and at the Time of Devereux’s
                                  Departure from the Firm

[32]   As is set forth above, the instant matter involves deceit and theft of client funds

       by Conour, who, at the time, was a highly-respected member of the Indiana

       legal profession. Hindsight proves that Conour was not worthy of this high

       level of respect but, rather, was a thief who violated the trust and confidences

       that numerous clients, including the Loves, had placed in him. In reviewing the

       claims of legal malpractice set forth herein against Devereux, however, we must

       not view the matter through the lens of hindsight, but rather must look to what

       Devereux knew at the time he is alleged to have committed legal malpractice by

       failing to warn the Loves of Conour’s potential wrongdoing.


[33]   Devereux acknowledges that he had a duty to exercise ordinary skill and

       knowledge in relation to his representation of the Loves while serving as one of

       their counsel of record. Devereux contends, however, that his decision not to

       discuss his concerns regarding Conour with the Loves did not amount to a

       breach of this duty. We agree.


[34]   The designated evidence indicates that Devereux decided to leave the Firm

       prior to December 21, 2011, because Conour was failing to pay expenses and

       expert witness fees in a timely fashion and the delay was “causing problems”


       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 18 of 24
       with his ability to prepare cases for trial. Appellant’s Br. p. 13. After making

       this decision, but prior to ending his employment with the Firm, Devereux

       subsequently learned the following: (1) the Firm had not promptly remitted

       attorney’s fees to a law firm that had served as co-counsel on a case that had

       settled earlier that year; (2) the Firm had not delivered settlement proceeds to a

       client from the client’s wrongful death case, in which the settlement proceeds

       had been approved for distribution several months earlier; and (3) Conour had

       prepared, signed, and faxed a case verification report to Advocate Capital that

       contained inaccurate and misleading information relating to certain cases.


[35]   In arguing that he did not breach any duty owed to the Loves, Devereux claims

       that it would have been inappropriate for him to share his concerns regarding

       Conour with the Loves at the time he ended his employment with the Firm.

       We agree.


[36]   The designated evidence reveals that although Devereux had concerns about

       some of Conour’s actions relating to the operation of the firm, at that time,

       Devereux’s suspicions related only to what he classified as poor business

       practices. Devereux only knew that Conour had failed to pay expert witnesses

       and co-counsel in a timely fashion, and had failed to provide an accurate up-to-

       date accounting of the Firm’s active cases to Advocate Capital. The designated

       evidence further reveals that Devereux did not have access to the Firm’s

       financial records, and did not know if there was a reasonable explanation for

       the delayed payments of the settlement proceeds which had yet to be

       distributed.

       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 19 of 24
[37]   The designated evidence also supports Devereux’s assertions that he did not

       have any specific knowledge (1) of any wrongdoing by Conour relating to the

       Loves, (2) that Conour was mishandling any active cases, or (3) of any

       wrongdoing by Conour other than delaying payments. Review of the

       designated evidence reveals that Devereux did not learn that Conour had settled

       a client’s claim without the client’s permission or knowledge until February 24,

       2012, and did not learn that Conour had settled the Loves’ case without their

       permission or knowledge, until July of 2012.


[38]   The designated evidence outlining Devereux’s knowledge at the time he

       terminated his employment from the Firm is insufficient to create an issue of

       material fact with regards to whether Devereux knew, or even should have

       known, that Conour would breach the trust instilled in him by his clients by

       stealing client funds. Again, whether a particular act or omission amounts to a

       breach of an attorney’s duty is generally a question of fact for the jury. In re

       Estate of Lee, 954 N.E.2d at 1047 (citing Oxley, 819 N.E.2d at 856). “However,

       breach can become a question of law where the facts are undisputed and only a

       single inference can be drawn therefrom.” Id. (citing Oxley, 819 N.E.2d at 856).

       Devereux claims that the record demonstrates that he acted appropriately and

       satisfied his duty to exercise ordinary skill and knowledge in relation to his

       representation of the Loves by subsequently initiating contact with the

       Disciplinary Commission regarding his concerns about Conour. Our review of

       the designated evidence submitted by the parties lead us to conclude that the

       designated evidence only allows for a single inference to be drawn, that


       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 20 of 24
       inference being that Devereux did not breach any duty that he owed to the

       Loves prior to or at the time he terminated his employment with the firm.


[39]   Furthermore, while we observe that William Harrington, an attorney who has

       been licensed to practice law in Indiana since 1989, opined that Devereux

       violated the duty he owed to the Loves, Harrington’s opinion was formulated

       on the unsupported assumption that Devereux had knowledge that Conour

       “may have been a thief of money belonging to clients and others.” Appellant’s

       App. p. 44. As is stated above, the designated evidence is insufficient to prove

       that Devereux “knew” that Conour was potentially stealing money from clients

       or others at the time Devereux left the firm. Accordingly, we cannot say that

       Harrington’s affidavit created an issue of material fact as to whether Devereux

       breached any duty he may have owed to the Loves.


         ii. Potential Breach Committed Upon Devereux’s Departure from the Firm

[40]   The Loves also argue that Devereux breached his duty by failing to withdraw

       his representation in the least harmful manner possible. Specifically, the Loves

       claim that Devereux violated his duty to them because he failed to warn the

       Loves of Conour’s wrongdoings despite the fact that he did not officially

       withdraw as an attorney of record until April of 2012, by which time he knew

       or should have known of the expansive scope of Conour’s wrongdoings. We

       cannot agree.


[41]   The designated evidence reveals that by the time Devereux learned that Conour

       had mishandled active cases, Devereux had not served as the Loves’ attorney


       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 21 of 24
       for nearly two months. Importantly, Jim admitted that as of December 29,

       2011, he knew that Devereux was no longer his attorney. Jim’s admission

       undercuts his and Diana’s claim on appeal that Devereux remained their

       attorney or retained some duty to them after he left the firm. As such, in this

       regard, we conclude that no issue of material fact remains that would preclude

       an award of summary judgment in favor of Devereux.


               II. Denial of the Loves’ Motion to Strike Expert
                      Affidavit Tendered by Devereux
[42]   The Loves also contend that the trial court erred in denying their motion to

       strike the expert affidavit tendered by Devereux. A trial court has broad

       discretion in granting or denying a motion to strike. Auto-Owners Ins. Co. v. Bill

       Gaddis Chrysler Dodge, Inc., 973 N.E.2d 1179, 1182 (Ind. Ct. App. 2012) (citing

       Coleman v. Charles Court, LLC, 797 N.E.2d 775, 786 (Ind. Ct. App. 2003)). The

       trial court’s decision will not be reversed unless prejudicial error is clearly

       shown. Id. (citing Coleman, 797 N.E.2d at 786). Further, this court has

       previously concluded that expert testimony is generally required to establish the

       applicable standard of care in legal malpractice actions. In re Estate of Lee, 954

       N.E.2d at 1047. However, experts may not testify as to conclusions of law.

       Hacker v. Holland, 570 N.E.2d 951, 953 (Ind. Ct. App. 1991).


[43]   In the instant matter, the Loves designated the affidavit of Harrington as expert

       testimony in support of their legal malpractice claim. Devereux filed a motion

       to strike Harrington’s affidavit. He also designated the affidavit of Lee Christie

       on a conditional basis, arguing that Christie’s affidavit should be considered as
       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 22 of 24
       designated evidence if the trial court did not strike Harrington’s affidavit. The

       Loves subsequently sought to strike Christie’s affidavit. The trial court denied

       both motions to strike, allowing both affidavits to remain part of the designated

       evidence.


[44]   Christie’s affidavit, like that tendered by Harrington, included statements

       relating generally to the duty an attorney owes to his or her clients and opinions

       relating specifically as to whether Christie believed that Devereux’s actions

       breached that duty. Because Christie’s opinions related to the factual

       determination of what constitutes a breach of duty we conclude that his

       opinions did not constitute conclusions of law. See In re Estate of Lee, 954

       N.E.2d at 1047 (providing that “although experts may not testify as to

       conclusions of law, such as the existence of a duty, expert witnesses are

       permitted to testify to the standard of practice within a given field”). As such,

       we conclude that the trial court did not abuse its discretion in denying the

       Loves’ motion to strike Christie’s affidavit.



                                                 Conclusion
[45]   We conclude that the trial court erred in denying Devereux’s motion for

       summary judgment. We also conclude that the trial court did not abuse its

       discretion in denying the Loves’ motion to strike Christie’s affidavit.

       Accordingly, we reverse the trial court’s denial of Devereux’s motion for

       summary judgment, affirm the trial court’s denial of the Loves’ motion to strike



       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 23 of 24
       Christie’s affidavit, and remand to the trial court with instructions to enter

       summary judgment in favor of Devereux.


[46]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions.


       Robb, J., concurs, Riley, J., concurs in result.




       Court of Appeals of Indiana | Opinion 49A02-1404-CT-260 | April 22, 2015   Page 24 of 24
