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Bevan v. Fix - 2002 WY 43, 42 P.3d 1013


Summary judgment is appropriate if the record, viewed in the light most favorable to the non-moving party, reveals that no genuine issues of material fact exist and the prevailing party is entitled to judgment as a matter of law.


Plaintiff father, Steven Matthew Bevan, hired an attorney, William R. Fix, to represent him on a family violence charge against his girlfriend, Jenni Jones, who he later married and who became the mother of plaintiff children, Steven and Brittany. Fix subsequently represented Jones against plaintiff father in Jones' action for divorce. However, defendant Fix neither consulted plaintiff father nor did he obtain the father's consent to Fix's representation of Jones. Attorney Fix then began a sexual relationship with Jenni Jones and withdrew from the representation. Paintiffs, father and children, sued Defendant Fix, the attorney, asserting, inter alia, claims for intentional infliction of emotional distress on behalf of the children and for legal malpractice on behalf of the father.  Following a hearing, the district court entered its order granting summary judgment to defendant Fix on all claims. The father and children appealed.


(a) Did the district court err when it granted summary judgment to defendant Fix on the children's claim for intentional infliction of emotional distress? (b) Did the district court err when it by granted summary judgment to appellee Fix on the father's claim of legal malpractice?


(a) Yes; (b) No


(a) The district court was in error by reasoning that simply because the alleged extreme and outrageous conduct of this case constitutes domestic violence among intimates it somehow necessitates that the plaintiffs make a "showing of exceptional circumstances" such as a "continuing course of abuse" by the defendant. The court’s affirmance of this conclusion would, as a consequence, impose on a certain class of plaintiffs a burden greater than that set forth in the general rules of Restatement § 46 based solely on the subject matter of the complained conduct and the relationship of the parties. We conclude sufficient evidence of emotional distress was presented to preclude summary judgment for appellee. The facts alleging the children's changes in behavior, their own deposition testimony, the affidavit of Jones, and the deposition testimony of the two counselors and psychologist who have subsequently interviewed and diagnosed the children's disorders are more than sufficient to give rise to a genuine issue of material fact on the issue of the children’s severe emotional distress.; (b) The court agreed that this is the correct analysis in regard to the application of Rule 1.9 to legal malpractice claims for breach of fiduciary duty and hereby adopt  it. Unlike cases involving disciplinary action or disqualification, in a claim for legal malpractice, a showing of a "substantial relationship" between the matter for which the attorney represented the former client plaintiff and the subsequent materially adverse representation does not give rise to an irrebuttable presumption that confidentiality has been breached. It may however, if supported by the evidence, allow a reasonable juror to draw the inference that the client's confidences have been used against him in contravention of the attorney's continuing duties of confidentiality and loyalty. The court affirmed dismissal of the legal malpractice claim, finding the father presented no evidence on the necessary element of injury.

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