                                                                                             FILED
                                                                                         Jun 23 2017, 8:20 am

                                                                                             CLERK
                                                                                         Indiana Supreme Court
                                                                                            Court of Appeals
                                                                                              and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Jon R. Pactor                                              Timothy F. Devereux
      Indianapolis, Indiana                                      Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Rene DiBenedetto,                                          June 23, 2017
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 49A05-1609-CT-2146
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      Timothy Devereux,                                          The Honorable James A. Joven,
      Appellee-Defendant                                         Judge
                                                                 Trial Court Cause No.
                                                                 49D13-1310-CT-37987



      Altice, Judge.


                                                 Case Summary


[1]   This is another legal malpractice action arising from the theft and deceit

      committed by former attorney William F. Conour (Conour) that led to the

      downfall of Conour Law Firm (the Firm) and victimized many of the Firm’s




      Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017                Page 1 of 21
      clients.1 Rene DiBenedetto is one such client. In this case, DiBenedetto filed a

      legal malpractice complaint against Timothy Devereux, an attorney who once

      practiced law with the Firm. DiBenedetto maintains that Devereux committed

      legal malpractice when he failed to accurately and honestly advise her regarding

      distribution of her settlement funds. Devereux filed a motion for summary

      judgment2 challenging the merits of DiBenedetto’s legal malpractice claim.

      After a hearing, the trial court granted Devereux’s summary judgment motion.

      DiBenedetto now appeals, arguing that genuine issues of material fact preclude

      entry of summary judgment in favor of Devereux.


[2]   We affirm.


                                           Facts & Procedural History


[3]   DiBenedetto was severely injured in a head-on collision on April 21, 2010. On

      April 26, 2010, DiBenedetto entered into a contingent-fee contract with the

      Firm. DiBenedetto had a personal connection to Conour and it was Conour




      1
        For nearly thirteen years, Conour “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.” Devereux v. Love, 30 N.E.3d 754, 757 (Ind. Ct. App. 2015) (record citation
      omitted), trans. denied (hereinafter, Love). Part of Conour’s scheme was that he would receive settlement
      funds on behalf of some clients and then unlawfully convert such settlement funds to his own use and benefit
      or to make settlement payments to other clients. It was determined that Conour stole, misappropriated, and
      unlawfully converted to his own use more than $4,500,000 belonging to more than 25 clients. On July 15,
      2013, Conour pled guilty in federal court to one count of wire fraud. He was subsequently sentenced to 120
      months in prison and ordered to pay restitution to the client-victims. Id.

      2
       This is the second appeal in this case. In the first appeal, this court addressed the limitations clause in the
      attorney-client contract, ultimately affirming the denial of Devereux’s first motion for summary judgment.
      See Devereux v. DiBenedetto, 45 N.E.3d 842 (Ind. Ct. App. 2015).

      Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017                              Page 2 of 21
      who agreed to handle her case. Devereux was an associate attorney 3 with the

      Firm when DiBenedetto entered into the contract, but he was not assigned to

      assist with her case, nor did he perform any work related thereto.


[4]   In July 2010, DiBenedetto received a letter informing her that the Firm was

      being transitioned to the new law firm of Conour Devereux Hammond. This

      letter, which is signed by Conour, Devereux, and Jeffrey Hammond, included

      the following statements:

               We are pleased to introduce you to the new law firm of Conour
               Devereux Hammond which is taking over the cases and business
               of the 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.


      Appellant’s Appendix, Vol. 2 at 23.4 In closing, the letter stated, “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.” Id.

      Despite the name change, Devereux maintains that he did not have an

      ownership interest in the Firm, was never a signatory on the Firm’s bank

      accounts, and was not provided access to the Firm’s financial records.




      3
        Under the terms of his Associate Attorney Agreement, Devereux agreed to “always exercise his best
      professional judgment on behalf of all clients” and to “comply with all applicable laws, rules, regulations and
      the Rules of Professional Conduct in the performance of his duties.” Appellant’s Appendix Vol. 2 at 74.
      4
        These excerpts are taken from the letter that was sent to James Love. DiBenedetto maintains that she
      received the same letter.

      Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017                           Page 3 of 21
[5]   Ultimately, DiBenedetto’s accident claims were settled without the filing of a

      lawsuit.5 The first settlement for $50,000 was paid by the insurance company

      for the tortfeasor. DiBenedetto signed a Release in Full of All Claims and

      Rights on January 13, 2011, but reserved the right to maintain a claim for

      underinsured motorist (UIM) coverage against her own insurance company.


[6]   During the summer of 2011, DiBenedetto, along with her father, stopped by the

      Firm unannounced to inquire about the disbursement of the January settlement.

      Conour was not in the office, but Devereux, being the only attorney present

      that day, agreed to speak with her. After consulting with the Firm’s paralegal

      and reviewing the Firm’s case-management software, Devereux met with

      DiBenedetto regarding the status of her case. Specifically, he acknowledged the

      January settlement and noted that there were medical liens6 and a pending UIM

      claim. Devereux explained that “typically . . . with cases like this” the pending

      UIM claim “had to be settled” before the medical liens could be negotiated and

      that thereafter, the remaining settlement funds, if any, would be distributed to

      her. Id. at 101. He further advised DiBenedetto to follow up with Conour

      concerning distribution of the settlement already received.




      5
       Pursuant to the contract with the Firm, if the matter was resolved prior to the filing of a complaint, the
      attorney fees were to be twenty-five percent of the gross recovery obtained.
      6
       A Value Code Report dated June 15, 2011 itemizes medical expenses received by the Firm for services
      provided to DiBenedetto as a result of the accident. As of that date, DiBenedetto’s medical expenses totaled
      $34,857.12.

      Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017                            Page 4 of 21
[7]   DiBenedetto’s UIM claim was settled in September 2011, and the settlement

      check was dated October 11, 2011. The check was endorsed by someone other

      than DiBenedetto7 and deposited into the Firm’s account on October 12, 2011.

      It was not until six weeks later, on November 29, 2011, that DiBenedetto was

      presented with and signed a release of all claims to finalize the settlement of the

      UIM claim. It is undisputed that Devereux did not participate or assist in the

      settlement of this claim or that he had any knowledge thereof.


[8]   In December 2011, Devereux became concerned about Conour’s business

      practices.8 As a result, he resigned from the Firm on December 22, 2011.

      DiBenedetto never received any funds from the settlement of either of her

      claims. It was later determined that Conour had misappropriated

      DiBenedetto’s settlement funds received from both the tortfeasor settlement and

      the UIM settlement.


[9]   On December 27, 2011, Devereux contacted the Indiana Supreme Court

      Disciplinary Commission to express his concerns about Conour. In January

      2012, the Federal Bureau of Investigation (FBI) contacted Devereux concerning

      an investigation regarding Conour’s failure to fund trusts that he described to

      clients as structured annuities. Devereux was not made aware of any other




      7
          Devereux maintains that he did not endorse the settlement check by signing DiBenedetto’s name.
      8
        In December 2011, Devereux became aware that Conour had not promptly remitted attorney fees to a law
      firm that had served as co-counsel on a case and that he had not yet forwarded settlement proceeds to a client
      in a wrongful death action after disbursement had been approved by the probate court. Devereux also
      became aware of inaccurate statements Conour made in a report to a financing company used by the Firm.

      Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017                          Page 5 of 21
       potential wrongdoing on behalf of Conour. Conour was criminally charged in

       federal court on April 27, 2012, and later pled guilty to one count of wire fraud.


[10]   On October 11, 2013, DiBenedetto filed a complaint against Devereux for legal

       malpractice, alleging that Devereux was negligent, breached his fiduciary

       duties, and breached his contractual obligations by not providing her with

       accurate information when she inquired about disbursement of her settlement

       funds during the summer of 2011. On March 23, 2016, Devereux filed the

       instant motion for summary judgment, arguing that, as a matter of law he did

       not breach any duty he owed to DiBenedetto. The trial court held a hearing on

       July 11, 2016. On September 2, 2016, the trial court entered an order granting

       summary judgment in favor of Devereux. The trial court made no findings of

       fact and did not set forth the basis for its decision. DiBenedetto now appeals.

       Additional facts will be provided as necessary.


                                            Discussion & Decision


[11]   DiBenedetto argues that the trial court erred in granting summary judgment in

       favor of Devereux. We review an order granting summary judgment de novo.

       Adams v. ArvinMeritor, Inc., 48 N.E.3d 1, 9 (Ind. Ct. App. 2015). Summary

       judgment is appropriate if, after reviewing the designated evidence, “there is no

       genuine issue as to any material fact and . . . the moving party is entitled to a

       judgment as a matter of law.” Ind. Trial Rule 56(C). A fact is material if its

       resolution would affect the outcome of the case, and an issue is genuine if a trier

       of fact is required to resolve the parties’ differing accounts of the truth, or if the


       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017     Page 6 of 21
       undisputed material facts support conflicting reasonable inferences. Williams v.

       Tharp, 914 N.E.2d 756, 761 (Ind. 2009). When the trial court has granted

       summary judgment, the nonmoving party has the burden on appeal of

       persuading us that the grant of summary judgment was in error. Adams, 48

       N.E.3d at 9.


[12]   “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 v.

       Miller, 869 N.E.2d 534, 541 (Ind. Ct. App. 2007) (quoting Clary v. Lite Machines

       Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006)), trans. denied. “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.


[13]   “Adequate communication and integrity when dealing with clients is a vital

       component of any attorney-client relationship.” Matter of Levy, 726 N.E.2d

       1257, 1259 (Ind. 2000). It therefore goes without saying that Devereux owed

       DiBenedetto a duty to provide her with truthful, accurate, and non-misleading

       information when he met with her during the summer of 2011. See Ind.

       Professional Conduct Rule 1.4(a)(2) (requiring attorneys to “reasonably consult

       with the client about the means by which the client’s objectives are to be

       accomplished”); Prof. Cond. R. 1.4(b) (noting that attorneys are to “explain a

       matter to the extent reasonably necessary to permit the client to make informed



       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017   Page 7 of 21
       decisions regarding the representation”). We conclude as a matter of law,

       however, that given the circumstances, Devereux did not breach this duty.


[14]   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.


[15]   DiBenedetto argues that Devereux breached his duty to provide her with

       truthful and accurate information. She asserts:

               [Devereux] never corrected or supplemented the advice that he
               gave. For example, he knew that Conour had not “promptly”
               distributed any of the money from the first settlement and had
               not “promptly” notified any health care provider or subrogee of
               the settlement. He knew or should have known that there was no
               legal obligation for her to wait for the completion of the
               underinsurance claim before money could be distributed. He
               knew that nothing had been distributed from either settlement
               when he left the firm in December 2011. Even at that time, he
               said nothing to her about problems with the handling of her
               money.


       Appellant’s Brief at 23-24. DiBenedetto designated an affidavit of an attorney,

       who opined that Devereux “inaccurately represented that there was no reason

       for concern” when DiBenedetto inquired as to why her settlement had not been

       distributed six months after she settled the claim with the tortfeasor’s insurance

       company. Appellant’s Appendix, Vol. 3 at 123. In the attorney’s opinion,

       Devereux should have taken some actions to protect DiBenedetto by


       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017   Page 8 of 21
       investigating further and advising her that she may not want to wait for

       distribution of the settlement that had already been received.


[16]   Devereux argues that he provided DiBenedetto with accurate information and

       further advised DiBenedetto to consult with Conour directly regarding the

       disbursement of her settlement. He also asserts that the crux of DiBenedetto’s

       claim is that he “knew or should have known that CONOUR was mishandling

       [her] settlement proceeds” and should have so informed her when he met with

       her during the summer of 2011. Appellee’s Appendix at 21. Devereux directs us

       to Love and argues that the same result obtains.


[17]   The underlying claim in Love arose out of the same type of deceit and

       wrongdoing by Conour that precipitated the instant action. In August 2008,

       shortly after Devereux joined the Firm, the Loves hired the Firm to represent

       them in a personal-injury action. Devereux was subsequently assigned, by

       Conour, to work on the Loves’ case and he was also identified as an attorney of

       record to the court. When Devereux terminated his employment with the Firm

       in December 2011, he informed the Loves generally of his departure and the

       Loves signed a form indicating their desire that Conour and the Firm continue

       to represent them.


[18]   After the Loves discovered Conour’s misconduct, they filed a complaint against

       Devereux for legal malpractice, alleging that he failed to warn them of Conour’s

       potential wrongdoing. The trial court denied Devereux’s motion for summary

       judgment and Devereux appealed. In considering whether Devereux breached


       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017   Page 9 of 21
       his duty to exercise ordinary skill and knowledge in relation to his

       representation of the Loves, this court was careful not to consider the matter

       “through the lens of hindsight,” but rather focused on what Devereux knew at

       the time he was alleged to have committed malpractice by failing to warn the

       Loves of Conour’s potential wrongdoing. Love, 30 N.E.3d at 764.


[19]   The designated evidence revealed to the court that while Devereux had

       concerns about Conour’s actions relating to operation of the Firm, such

       suspicions related only to poor business practices. The court further noted that

       the designated evidence also supported Devereux’s assertion that he did not

       have any specific knowledge of wrongdoing by Conour relating to the Loves,

       the mishandling of any active cases, or any wrongdoing other than delaying

       payments. This court concluded:

               [t]he 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.


       Love, 30 N.E.3d at 765. Thus, this court held that Devereux’s decision to not

       discuss his concerns with the Loves did not amount to a breach of duty to warn

       the Loves of Conour’s potential wrongdoing. This court therefore reversed the

       trial court’s determination and remanded with instructions that the trial court

       enter summary judgment in favor of Devereux.



       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017   Page 10 of 21
[20]   Like the Loves, DiBenedetto was also victimized by Conour and is seeking

       redress from Devereux. Devereux asserts that despite the factual differences

       between the Loves’ scenario and the instant action, this court’s analysis in Love

       as to whether he breached a duty owed to DiBenedetto is applicable. He

       maintains that his designated evidence, which is virtually identical to the

       evidence relating to his knowledge that was designated in Love, shows that he

       was not aware of Conour’s wrongdoing at the time he consulted with

       DiBenedetto about the distribution of her settlement proceeds. Devereux

       further emphasizes that he was never assigned to work on DiBenedetto’s case,

       that he did not perform any work on DiBenedetto’s case, and that he spoke

       with her on only one occasion when he explained to her the status of her case as

       outlined in the Firm’s case management system. Based on these facts,

       Devereux asserts that he did not breach any duty owed to DiBenedetto and

       thus, the trial court properly granted summary judgment in his favor.


[21]   DiBenedetto points to factual differences in arguing that Love is inapposite to

       this case. Specifically, DiBenedetto notes that Conour settled the Loves’ claim

       without their permission and stole their money months after Devereux left the

       firm while both of her claims were settled with her knowledge and prior to

       Devereux’s departure. DiBenedetto asserts that “the most critical distinction”

       is that, unlike the Loves, she “sought information directly from [Devereux]

       about why her settlement in January 2011 had not been distributed.”

       Appellant’s Brief at 18.




       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017   Page 11 of 21
[22]   Our analysis focuses on the meeting between DiBenedetto and Devereux

       during the summer of 2011. DiBenedetto stopped by the Firm unannounced.

       It just so happened that Conour was not in the office that day, but Devereux

       was. Even though Devereux knew nothing about DiBenedetto’s case, he took a

       few minutes to confer with the Firm’s paralegal and review the Firm’s case

       management summary with respect to her case. Devereux then met with

       DiBenedetto and informed her about the status of her case—confirming the

       settlement of the tortfeasor claim and also noting that there were several

       outstanding medical bills/liens and a pending UIM claim. There is no dispute

       that the information Devereux provided was accurate.


[23]   To the extent Devereux advised that the UIM claim “had to be settled” before

       the money would be distributed, we conclude that such does not support a

       determination that Devereux breached his duty to provide DiBenedetto with

       accurate information or breached his duty to exercise ordinary skill and

       knowledge. Appellant’s Appendix Vol. 2 at 101. Devereux acknowledges that he

       told DiBenedetto that “typically” in cases such as hers, all claims “had to be

       settled” before the medical liens would be negotiated and that only thereafter

       would the remaining settlement funds, if any, be disbursed to her. In support of

       his position, Devereux designated evidence in the form of an attorney affidavit

       that “[i]t is common practice that medical bills or liens are frequently not

       resolved with the payment of limits by the underlying tortfeasor’s carrier,

       particularly if the bills or liens are a significant portion of the underlying

       tortfeasor’s settlement.” Appellant’s Appendix Vol. 3 at 99. Given that at the time


       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017    Page 12 of 21
       Devereux had no reason to suspect any wrongdoing by Conour with regard to

       DiBenedetto’s settlement funds, his advice in this regard was not inaccurate or

       necessarily misleading.


[24]   DiBenedetto’s designated evidence does not contradict Devereux’s designated

       evidence to the effect that it is common practice to wait until all claims are

       settled before a settlement is disbursed. DiBenedetto’s expert simply opines that

       Devereux “knew or should have known,” Id. at 121, that something was amiss

       because Conour had not “promptly” disbursed the settlement funds to cover

       medical liens and paid the balance to DiBenedetto pursuant to Prof. Cond. R.

       1.15(d).9 DiBenedetto’s expert opines that Devereux breached his duty by

       failing to advise DiBenedetto that there was sufficient money to pay her health

       care providers and resolve any liens and as a result, the money in the trust

       account “should have delivered promptly.” Appellant’s Appendix Vol. 2 at 121.

       In reaching this opinion, however, the expert had to make certain assumptions,

       such as, that the Firm’s records were complete, that all medical bills had been

       received, and/or that the UIM claim would be settled prior to the filing of a

       complaint. Devereux’s duty was to provide DiBenedetto with accurate




       9
           Prof. Cond. R. 1.15(d) provides:

               Upon receiving funds or other property in which the client or third person has an interest, a
               lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise
               permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or
               third person any funds or other property that the client or third person is entitled to receive and,
               upon request by the client or third person, shall promptly render a full accounting regarding such
               property.
       (Emphasis supplied).

       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017                             Page 13 of 21
       information and he did just that. To the extent the information Devereux

       provided DiBenedetto did not satisfactorily answer her question regarding the

       distribution of the first settlement proceeds, Devereux advised her to speak

       directly with Conour, who had been responsible for the case since the

       beginning.


[25]   DiBenedetto’s argument that Devereux knew or should have known that

       something was amiss when he reviewed her case file is based on a view of the

       facts as they existed at the time of her meeting with Devereux through the lens

       of hindsight. Now armed with the knowledge that Conour misappropriated her

       settlements, she seeks to reach back in time and blame Devereux for not

       knowing that her settlement funds had not been properly safeguarded. At that

       time, Devereux had gathered basic information about DiBenedetto’s case as

       reflected in the Firm’s records and provided that information to her.


[26]   With regard to Devereux’s explanation to DiBenedetto that she would have to

       wait until her UIM claim was settled, such was consistent with what Devereux

       considered common practice and as such, the fact that the settlement had yet to

       be distributed did not raise any red flags. We further note that to the extent

       there were questions beyond the overview of information about DiBenedetto’s

       case contained in the Firm’s records, Devereux advised DiBenedetto to speak

       directly with Conour as he was the only one who had worked on her case and

       knew the details thereof. Under the facts of this case, we conclude as a matter

       of law that Devereux did not breach his duty to exercise ordinary skill and

       knowledge or to provide DiBenedetto with accurate and non-misleading

       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017   Page 14 of 21
       information. Having concluded that the designated evidence establishes that

       Devereux did not breach any duty owed to DiBenedetto, we affirm the trial

       court’s grant of summary judgment in favor Devereux.


                                                  Attorney Fees


[27]   Devereux requests an award of attorney fees and other sanctions pursuant to

       Ind. Appellate Rule 66, which provides:


               G. Damages for Frivolous or Bad Faith Filings. The Court
               may assess damages if an appeal, petition, or motion, or
               response, is frivolous or in bad faith. Damages shall be in the
               Court’s discretion and may include attorneys’ fees. The Court
               shall remand the case for execution.


[28]   Devereux asserts that the dispositive issue – his knowledge of Conour’s

       wrongdoing – was previously decided by this court in Love and notes that no

       new evidence was presented in this case that would have any effect on that

       holding. Devereux further asserts that DiBenedetto even resorted to scandalous

       accusations by alleging in her complaint that he “effectively and knowingly

       assisted . . . Conour to violate the Rules of Professional Conduct.” Appellant’s

       Appendix, Vol. II at 17. Devereux maintains that attorney fees are warranted

       given that DiBenedetto persisted in asserting a baseless position, forcing him to

       once again defend himself against an issue already decided in Love.


[29]   As the above discussion illustrates, the Love decision was not entirely dispositive

       of the issue in this case in light of the different factual circumstances. We

       therefore do not find that the appeal was frivolous or brought in bad faith.

       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017   Page 15 of 21
       Moreover, we conclude that the challenged averment is not so scandalous that

       it supports an award of attorney fees. Devereux’s request is denied.


[30]   Judgment affirmed.


[31]   Riley, J., concurs.


[32]   Crone, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017   Page 16 of 21
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Rene DiBenedetto,                                          Court of Appeals Case No.
                                                                  49A05-1609-CT-2146
       Appellant-Plaintiff,

               v.

       Timothy Devereux,
       Appellee-Defendant




       Crone, Judge, dissenting.


[33]   I respectfully dissent from the majority’s affirmance of summary judgment in

       Devereux’s favor. The majority assumes, without deciding, that an attorney-

       client relationship existed between Devereux and DiBenedetto, who had dealt

       solely with Conour until the summer of 2011. I agree with this assumption, but

       it is important to note that “[c]reation of an attorney-client relationship is not

       dependent upon the formal signing of an employment agreement or upon the

       payment of attorney fees. An attorney-client relationship need not be express,

       but may be implied by the conduct of the parties.” Matter of Anonymous, 655

       N.E.2d 67, 70 (Ind. 1995). “Attorney-client relationships have been implied

       where a person seeks advice or assistance from an attorney, where the advice

       sought pertains to matters within the attorney’s professional competence, and

       where the attorney gives the desired advice or assistance.” Id.



       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017               Page 17 of 21
[34]   The designated evidence most favorable to DiBenedetto as the nonmoving

       party establishes that in July 2010, Devereux, Conour, and Hammond signed a

       letter to DiBenedetto on the Firm’s letterhead that stated, “[W]e are continuing

       to represent you as your attorneys[,]” and, “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.” Appellant’s App. Vol. 2

       at 65. According to DiBenedetto’s affidavit, sometime after she received that

       letter, Conour told her “that all of the attorneys would be working on [her]

       case.” Appellant’s App. Vol. 3 at 29 (emphasis added). When DiBenedetto

       visited the Firm in the summer of 2011 to ask about “the settlement of [her]

       case” and “when [she] would be receiving payments[,]” Devereux “did not tell

       [her] that he was only an employee or that [she] could not rely on him.” Id. at

       30, 29. In response to DiBenedetto’s inquiry, Devereux told her that she

       “would not be receiving money until the liens had been taken care of.” Id. at

       30. At the very least, this evidence is sufficient to create a genuine issue of

       material fact as to whether an attorney-client relationship existed between

       Devereux and DiBenedetto.


[35]   As DiBenedetto’s attorney, Devereux owed her a general duty to exercise

       ordinary skill and knowledge. In re Estate of Lee, 954 N.E.2d 1042, 1047 (Ind.

       Ct. App. 2011), trans. denied (2012). And, as the majority acknowledges, it

       “goes without saying” that he owed her “a duty to provide her with truthful,

       accurate, and non-misleading information when he met with her during the

       summer of 2011.” Slip op. at 7 (citing Ind. Professional Conduct Rules


       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017   Page 18 of 21
       1.4(a)(2) and 1.4(b)). The majority concludes as a matter of law that Devereux

       did not breach this duty. I respectfully disagree.


[36]   In support of her response to Devereux’s summary judgment motion,

       DiBenedetto submitted the affidavit of an experienced practicing attorney who

       opined that Devereux breached the applicable standard of care, based in part on

       his belief that Devereux knew or should have known that Conour had not

       complied with Professional Conduct Rule 1.15(d) and that Devereux should

       have advised DiBenedetto accordingly. Rule 1.15(d) states,

               Upon receiving funds or other property in which the client or
               third person has an interest, a lawyer shall promptly notify the
               client or third person. Except as stated in this rule or otherwise
               permitted by law or by agreement with the client, a lawyer shall
               promptly deliver to the client or third person any funds or other
               property that the client or third person is entitled to receive and,
               upon request by the client or third person, shall promptly render
               a full accounting regarding such property.


       (Emphasis added.)


[37]   During his meeting with DiBenedetto, Devereux became aware that the

       $50,000 settlement check from the tortfeasor had been deposited in Conour’s

       trust account at least five months earlier and that DiBenedetto’s bills for

       medical services (the last of which had been rendered at least six months earlier)

       totaled less than $35,000. Thus, Devereux also became aware that Conour had

       not promptly delivered to DiBenedetto any funds that she was entitled to

       receive. See Matter of Helmer, 634 N.E.2d 56, 56 (Ind. 1994) (finding that


       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017   Page 19 of 21
       attorney violated Ind. Professional Conduct Rule 1.15 by waiting three months

       to deliver client’s portion of settlement funds). In his deposition, Devereux

       testified that he told DiBenedetto and her father that “they would have to ask

       Mr. Conour” about “when they would be getting payments” and “explained

       typically what happened with cases like this if there were medical liens, both

       cases had to be settled, the underlying lawsuit and the UIM claim, and then the

       medical bill liens had to be resolved” and that “generally, that’s how the system

       works.” Appellant’s App. Vol. 2 at 101. Another experienced practicing

       attorney who submitted an affidavit in support of Devereux’s summary

       judgment motion took a similar position. Appellant’s App. Vol. 3 at 99.

       Simply because attorneys “generally” handle certain cases in a certain way does

       not mean that the procedure always complies with the Professional Conduct

       Rules adopted by our state’s highest court.


[38]   At oral argument, Devereux conceded that a minimum of $10,000 of the

       $50,000 settlement was unencumbered by any potential medical liens or

       attorney fees, that there was no legal impediment to distributing that amount to

       DiBenedetto at that time, and that he did not advise her that she had a present

       right to receive those funds. See Oral Arg. at 22:29-24:21.10 Had he done so,

       DiBenedetto could have asked for and received the funds from Conour, or she

       might have been put on notice that something sinister was afoot and terminated




       10
         Devereux also conceded that any subsequent reduction of the medical bills via negotiations with health
       care providers could only have resulted in a larger recovery for DiBenedetto. See Oral Arg. at 23:03-23:15.

       Court of Appeals of Indiana | Opinion 49A05-1609-CT-2146 | June 23, 2017                        Page 20 of 21
       her relationship with Conour. It is important to remember that her funds were

       still in Conour’s trust account at that time.


[39]   Personal injury plaintiffs are often strapped for cash and hounded by creditors

       while they wait for their cases to be resolved. They are also often unfamiliar

       with the ins and outs of negotiations and settlements and the professional

       responsibilities of the attorneys who are legally and ethically obligated to

       protect their interests. Consequently, it is imperative for attorneys to comply

       with Professional Conduct Rule 1.15(d) and either promptly distribute funds to

       which their clients are indisputably entitled or, at a minimum, advise them of

       their right to receive those funds. Based on the evidence most favorable to

       DiBenedetto as the nonmoving party, I believe that genuine issues of material

       fact exist regarding whether Devereux breached his duty to provide

       DiBenedetto with truthful, accurate, and non-misleading information regarding

       Conour’s handling of the tortfeasor’s settlement funds and her present right to

       receive those funds, as well as whether any breach proximately caused her

       alleged damages relating to those funds.11 Therefore, I would reverse the trial

       court’s grant of summary judgment in Devereux’s favor, remand for trial, and

       deny Devereux’s request for attorney fees.




       11
         Because there is no evidence that Devereux had any further involvement with DiBenedetto or had any
       knowledge of Conour’s subsequent settlement of her UIM claim, I do not believe that he may be considered a
       proximate cause of her failure to receive those funds.

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