Flatow v. Ingalls, Court of Appeals of Indiana, August 16, 2010 (Unpublished).
Facts: Ingalls sued the Flatow Defendants for legal malpractice, alleging that defendants were negligent in failing to respond to a cross-motion for summary judgment. Defendants argued that they had no duty to do so under the parties’ Retainer Agreement, which provided that the defendants would represent the Ingalls only as to one particular count in the underlying action by drafting a motion for summary judgment and a reply brief.
Issue: Under these circumstances, was it appropriate for the defendants to not oppose a cross-motion filed against their clients?
Indiana Professional Conduct Rule 1.2(c) allows ‘the scope and objectives of the representation’ to be limited ‘if the limitation is reasonable under the circumstances and the client gives informed consent.’ It is appropriate where:
1. [T]he client has limited objectives; and
2. [T]he terms upon which the representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives.
In light of the specific language of the parties’ Retainer, the Court held that a response to a cross-motion against Ingalls was not part of the limited representation to which the parties had agreed. The fact that the cross-motion was related to the particular count for which defendants sought summary judgment was not enough to sway the Court’s decision. Rather, the Court relied on the language of the retainer itself: "Defendants agreed to file only a motion for summary judgment and reply in [this] matter…[I]t was incumbent upon [Ingalls] to seek any further representation he needed as to the [cross-motion]."
Lesson: A very specific and unambiguous retainer is key where an attorney agrees to limited representation. The agreement should spell out the means by which the client’s limited objectives will be accomplished. At least in Indiana, it appears that the agreement will be upheld even where there is an omission by the attorney as to directly related issues. The attorney would be wise to, as the Flatow Defendants did here, provide prompt notice of all issues that are not within the scope of the agreement, and allow the client to timely seek additional representation.