Storfer v. Dwelle et al

Filing 33

MEMORANDUM DECISION AND ORDER denying 23 MOTION for Summary Judgment. Jury Trial set for 12/9/2014 09:30 AM in Coeur d Alene - District Courtroom before Judge Edward J. Lodge. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

DINARA M. STORFER, an individual,
Plaintiff,

Case No. 3:12-cv-00496-EJL
MEMORANDUM DECISION AND
ORDER

v.
ANNE DWELLE, and individual;
ROBERT WAKEFIELD, an individual;
WAKEFIELD & DWELLE, PLLC, an
Idaho professional limited liability
company,
Defendants.

INTRODUCTION
Defendants Anne Dwelle, Robert Wakefield, and Wakefield & Dwelle, PLLC,
seek summary judgment on plaintiff Dinara M. Storfer’s claims for professional
negligence and negligent infliction of emotional distress. (Dkt. 23-24). Ms. Storfer’s
claims arise from her divorce from her former husband, Jeff Kline. Defendants argue that
they did not have an attorney-client relationship with Ms. Storfer, and thus owed her no
duty of care, with respect to the divorce. But Defendants admit they had an attorneyclient relationship with Ms. Storfer regarding an earlier estate matter, and the parties
dispute the duration of that attorney-client relationship, whether an independent attorney-

Memorandum Decision and Order-1

client relationship existed between Ms. Storfer and Attorney Dwelle during the divorce
proceeding, and whether and when Ms. Storfer effectively waived the duties Defendants
owed to her as a current or former client. This case is rife with disputed material facts,
and so summary judgment is not proper.
BACKGROUND
Ms. Storfer was born and raised in Kazakhstan and came to the United States in
1996, when she was twenty years old. Compl. ¶¶ 7-8; Dkt. 24-1 at 7 (Storfer Depo. at
10). English is her third language. Ms. Storfer met and married her now ex-husband,
Jeff Kline, not long after arriving in the United States. Compl. ¶¶ 9-10.
In 2002 and 2003, the couple sought estate planning advice from Robert
Wakefield at Wakefield & Dwelle. Attorney Wakefield drafted various estate planning
documents for them. Dkt. 24-2 at 3 (Wakefield Depo. at 7-8). Those documents
included a living trust, which held all of the property that the couple owned at the time
the trust was created and provided for the distribution of the trust property if the couple
were to divorce. Dkt. 26-2 at 5, 56; but see Dkt. 24-2 at 8 (Wakefield Depo. at 25) (in
which Attorney Wakefield explained that the “purpose of th[at] section would be in case
there would be the possibility that the parties would divorce but not dissolve the trust
somehow,” but that he was “not sure exactly how that would happen”). Mr. Kline and
Ms. Storfer were trustees, with Attorney Wakefield and Attorney Anne Dwelle as
successor trustees. Dkt. 24-1 at 47 (Dwelle Depo. at 52).

Memorandum Decision and Order-2

According to Ms. Storfer, the couple’s marriage went downhill in 2002, shortly
after she finished her Ph.D. and gave birth to the couple’s first son. Compl. ¶¶ 13-15.
She gave up her career at Mr. Kline’s insistence, instead dedicating herself to raising their
sons and managing the household. Compl. ¶¶ 13-15. Mr. Kline became the sole
breadwinner, and had complete control over the family finances. Compl. ¶¶ 11, 16, 23.
Ms. Storfer alleges that Mr. Kline also became emotionally and sexually abusive,
threatened her with physical violence, and threatened to take their sons away. Compl. ¶¶
15-20, 27-31.
Ms. Storfer moved out of the family home in June 2010, but still returned every
day to run the household and take care of their sons. Compl. ¶ 25. When Mr. Kline and
Ms. Storfer began discussing divorce, including the division of their marital property,
Ms. Storfer alleges that Mr. Kline acted as though the marital property belonged
exclusively to him. Compl. ¶ 26. Ms. Storfer did not know the value of their marital
property or what rights she had to that property. Compl. ¶ 26.
Sometime in the spring or summer of 2010, Mr. Kline contacted Attorney
Wakefield about the breakdown of his marriage. Dkt. 24-2 at 16 (Wakefield Depo. at
57). Attorney Wakefield suggested to Mr. Kline that his partner, Anne Dwelle, represent
Mr. Kline in the divorce because she had more divorce experience. Dkt. 24-2 at 16
(Wakefield Depo. at 57). Attorney Dwell and Mr. Kline began communicating back and
forth regarding the divorce and distribution of assets “a fair amount of time before”
September 2010. Dkt. 26-4 at 9-11 (Dwelle Depo at 18-20). With the exception of a

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string of e-mails from September 23 and 24, 2010, Attorney Dwelle no longer has any
record of those conversations. Dkt. 24-1 at 44 (Dwelle Depo. at 39-40) (in which
Attorney Dwelle explains that she permanently deletes client e-mails when her Gmail
account gets full, which happens approximately “every couple of months”). The e-mails
that have been produced show that Attorney Dwelle relied on Mr. Kline to relay
information between Ms. Storfer and Attorney Dwelle. Dkt. 26-5 at 2-5. For example,
Attorney Dwelle asked Mr. Kline to provide her with Ms. Storfer’s current address, to
which Mr. Kline responded that Ms. Storfer “doesn’t know her address,” and later that
she “has no idea what her physical address is. She says to use my office address.”
Dkt. 26-5 at 2, 5.
According to Attorney Dwelle’s most recent deposition testimony, she first
discussed the divorce with Ms. Storfer at a meeting on August 20, 2010. Dkt. 24-1 at 38
(Dwelle Depo. at 16). Ms. Storfer denies that meeting ever took place. Dkt. 24-1 at 12,
17 (Storfer Depo. at 29, 50). On September 27, 2010, the couple met at Wakefield &
Dwelle and signed a notice of dissolution of trust. Ms. Storfer also signed a conflict
waiver purporting to waive any conflict created by Attorney Dwelle’s representation of
Mr. Kline in the divorce. The record does not reflect which document Ms. Storfer signed
first. Dkt. 24-2 at 15 (Wakefield Depo. at 54); Dkt. 24-1 at 43 (Dwelle Depo. at 34).
Attorney Wakefield drafted the notice of dissolution on his own initiative after
discussing the divorce with Attorney Dwelle and determining that the trust would need to
be dissolved before the couple could divide their property. Dkt. 24-2 at 14 (Wakefield

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Depo. at 50, 52); Dkt. 24-1 at 40 (Dwelle Depo. at 22-24). The notice of dissolution
stated that “[t]he trustees are divorcing and allocating the trust property by means of a
Property Settlement Agreement of even date herewith,” and was notarized by Attorney
Dwelle. Dkt. 24-1 at 21-22. The property settlement agreement was not actually
executed until a couple of weeks later. Dkt. 26-6 at 2-10.
Attorney Dwelle drafted the waiver without consulting the Idaho Rules of
Professional conduct or seeking the Idaho Bar’s advice regarding the conflict or waiver.
Dkt. 24-2 at 16 (Wakefield Depo. at 58); Dkt. 24-1 at 42-43 (Dwelle Depo. at 31-34).
The waiver states:
I, Dinara Kline, understand that Anne Dwelle and Robert Wakefield
of the firm Wakefield and Dwelle, cannot represent both my husband Jeff
and me in an action for divorce. I acknowledge that both Anne and Bob
worked with both my husband and me when we discussed estate planning
and drafted our Living Trust, wills, living wills, etc., but I do not feel that
either Anne or Bub obtained any information at that time which they would
use to disadvantage me in the current divorce settlement negotiations.
I have been advised by both Anne and Bob that I can retain another
lawyer to represent me in the divorce action and review any agreements
which my husband and I might reach. Anne and Bob have explained the
term “conflict of interest” as it affects me, and I fully understand the
consequences of signing this waiver.
Having satisfied myself that no true conflict of interest exists, I
consent to either Anne Dwelle or Robert Wakefield’s representation of my
spouse in an action for divorce.
Dkt. 24-1 at 19. Both Attorney Dwelle and Attorney Wakefield maintain that they did
not believe their representation of Mr. Kline in the divorce presented a “true conflict.”
Dkt. 24-2 at 15 (Wakefield Depo. at 55); Dkt. 24-1 at 43 (Dwelle Depo. at 33). Even
though “technically” Attorney Wakefield “was privy to information which could have

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been used by one against the other,” he claims that “practically” speaking, he did not
believe he learned anything from his prior representation of the couple that could have
been used against Ms. Storfer in the divorce. Dkt. 24-2 at 15 (Wakefield Depo. at 55).
The couple met at Wakefield & Dwelle again on October 8, 2010, at which time
the couple executed the property and custody settlement agreement and divorce decree.
Dkt. 26-6 at 2-16. The divorce documents provided Ms. Storfer with one million dollars
of the marital estate, no spousal or child support, and granted primary custody of their
two sons to Mr. Kline. Dkt. 26-6.
Although the parties do not dispute that Mr. Kline and Ms. Storfer executed the
dissolution of trust, waiver, and divorce documents on September 27 and October 8, they
dispute almost the entirety of the circumstances surrounding the execution of those
documents and the relationship between the parties.
A.

August 20, 2010 Meeting

During Attorney Dwelle’s December 2013 deposition in this case, she testified
that she first discussed the divorce with Ms. Storfer on August 20, 2010. Dkt. 24-1 at 38
(Dwelle Depo. at16). But during Attorney Dwelle’s September 2012 deposition in a
related case, brought by Ms. Storfer against Mr. Kline, Attorney Dwelle testified that she
first discussed the divorce with Ms. Storfer on September 27. Dkt. 26-4 at 8, 14 (Dwelle
Depo. at 17, 23). Attorney Dwelle has no record of the August 20 meeting, and she
admits that she only remembered the date of that meeting after reading Mr. Kline’s
corresponding diary entry. Dkt. 24-1 at 38, 42 (Dwelle Depo. at16-18, 42); Dkt. 26-4 at

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8, 14 (Dwelle Depo. at 17, 23). Ms. Storfer contests that the meeting ever took place.
Dkt. 24-1 at 12, 17 (Storfer Depo. at 29, 50).
During her deposition in this case, Attorney Dwelle further claimed that her
representation of Mr. Kline began, and Attorney Wakefield’s representation of
Ms. Storfer ended, at the August 20 meeting. Dkt. 24-1 at 38 (Dwelle Depo. at 16).
However, Defendants confirmed in an August 2012 letter regarding related litigation that
they represented Ms. Storfer until September 27, when Ms. Storfer signed the waiver.
Dkt. 26-4 at 3, 8 (Dwelle Depo. at 12, 17); Dkt. 24-2 at 12, 14 (Wakefield Depo. at 4142, 49). Most recently, in their motion for summary judgment, Defendants argue that
their representation of Ms. Storfer ended in 2003 when Attorney Wakefield finished the
estate matter. Defs.’ MSJ at 16.
Finally, Attorney Dwelle testified that she first advised Ms. Storfer to get her own
attorney at the August 20 meeting, and that she may have specifically recommended
attorney Jennifer Ewers, who shares an office and assistant with Defendants. Dkt. 24-1 at
38, 47 (Dwelle Depo. at 18-19, 49-51). Ms. Storfer claims that Defendants did not
directly advise her to see Attorney Ewers, but that Mr. Kline gave her that
recommendation. Dkt. 24-1 at 12, 15 (Storfer Depo. at 30, 43). Through the attorneys’
shared assistant, Defendants learned that Ms. Storfer had made, and later cancelled, an
appointment with Attorney Ewers. Dkt. 24-2 at 15-16 (Wakefield Depo. at 56-57); Dkt.
24-1 at 47 (Dwelle Depo. at 49-51). Defendants saw no problem with Attorney Ewers
representing Ms. Storfer, even though they shared an office and an assistant, nor did they

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find it problematic that the assistant relayed information to Defendants regarding
Ms. Storfer’s appointments with Attorney Ewers. Dkt. 24-2 at 16 (Wakefield Depo. at
57); Dkt. 24-1 at 47 (Dwelle Depo. at 50-52).
B.

September 27, 2010 Meeting

According to Ms. Storfer, Defendants put the waiver and notice of dissolution in
front of her on September 27 and simply showed her where to sign. Dkt. 24-1 at 14-15
(Storfer Depo. at 37-42). Ms. Storfer did not have time to read the documents before
signing them, did not understand all of the terms, and did not understand what effect the
documents would have. Dkt. 24-1 at14-15 (Storfer Depo. at 37-42). She signed in part
because she thought Defendants were helping the couple out, and in part because she
feared what Mr. Kline, who was present throughout the meeting, would do if she refused.
Dkt. 24-1 at 13-16 (Storfer Depo. at 35-36, 40, 43, 47).
Defendants have no record of the September 27 meeting, other than the waiver and
notice of dissolution themselves. Dkt. 24-1 at 44-46 (Dwelle Depo. at 39-40, 44, 46);
Dkt. 24-3 at 12 (Wakefield Depo. at 43-44). Defendants testified that they spoke
extensively with Ms. Storfer about the waiver and advised that she get another attorney’s
opinion before signing. Dkt. 24-2 at 15-16 (Wakefield Depo. at 53, 58); Dkt. 24-1 at 43
(Dwelle Depo. at 35-36). Attorney Dwelle admits, however, that they did not explain the
advantages and disadvantages of signing the waiver and told Ms. Storfer that no conflict
existed. Dkt. 24-1 at 44 (Dwelle Depo. at 37).

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Attorney Wakefield claims, curiously enough, that he represented neither
Mr. Kline nor Ms. Storfer during the dissolution of trust, Dkt. 24-2 at 15 (Wakefield
Depo. at 53). Attorney Wakefield admits he did not advise Ms. Storfer to get another
attorney’s advice before signing the notice of dissolution, Dkt. 24-2 at 15-16 (Wakefield
Depo. at 53, 58), and he did not explain its meaning or effect, Dkt. 24-2 at 15 (Wakefield
Depo. at 53). Attorney Dwelle claims that she represented only Mr. Kline in that
transaction, Dkt. 24-1 at 40 (Dwelle Depo. at 23); she explained the notice of
dissolution’s effect, Dkt. 26-4 at 6 (Dwelle Depo. at 15); and she advised Ms. Storfer to
see another attorney if she had any questions, Dkt. 24-1 at 47 (Dwelle Depo. at 49).
C.

October 8, 2010 Meeting

Ms. Storfer and Mr. Kline signed the divorce decree and property and custody
settlement agreement at Wakefield & Dwelle on October 8.1 Ms. Storfer testified, and
Defendants deny, that Mr. Kline stayed throughout the meeting, during which Ms. Storfer
asked Attorney Dwelle if everything was “legitimate and legal,” to which Attorney
Dwelle responded that Ms. Storfer was getting “a good deal.” Dkt. 24-1 at 16 (Storfer
Depo. at 45-48). Ms. Storfer did not understand the effect of the documents or the value
of the marital estate—which she now estimates to be five million dollars—until months
later. Dkt. 24-1 at 15-16 (Storfer Depo. at 42-48); Dkt. 26-4 at 17-18.

1

Just four days before, Attorney Dwelle e-mailed Mr. Kline because Ms. Storfer had not come in to sign the divorce
documents as expected. Dkt. 26-10 at 2. Mr. Kline responded as follows: “Good lord, we’ve talked a few times
and she’s vacillating now, wondering if she should get an attorney. What if we threw a clause in that said she could
see the boys three hours/day after school, or any time she wants.” Id. The record does not contain Attorney
Dwelle’s response.

Memorandum Decision and Order-9

STANDARD OF REVIEW
Summary judgment is appropriate if the moving party shows that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56. The moving party bears the initial burden of showing that
there is no material factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party makes that showing, the burden shifts to the nonmoving party to
show, “by her own affidavits, or by the ‘depositions, answers to interrogatories, and
admissions on file,’ that ‘there is a genuine issue for trial.’” Id. at 234 (quoting Rule 56).
The court must view the evidence in a light most favorable to, and draw all reasonable
inferences in favor of, the non-moving party. City of Pomona v. SQM N. Am. Corp., 750
F.3d 1036, 1049 (9th Cir 2014).
ANALYSIS
I.

Professional Negligence
“The relationship of client and attorney is one of trust, binding an attorney to the

utmost good faith in fair dealing with his client, and obligating the attorney to discharge
that trust with complete fairness, honor, honesty, loyalty, and fidelity.” Blough v.
Wellman, 974 P.2d 70, 72 (Idaho 1999). If an attorney breaches those duties, the client
may hold the attorney liable by proving: “’(a) the existence of an attorney-client
relationship; (b) the existence of a duty on the part of the lawyer; (c) failure to perform
the duty; and that (d) the negligence of the lawyer [was] a proximate cause of the damage

Memorandum Decision and Order-10

to the client.’” Bishop v. Owens, 272 P.3d 1247, 1251 (Idaho 2012) (quoting Johnson v.
Jones, 652 P.2d 650, 654 (Idaho 1982)).
Defendants contend that they are entitled to summary judgment because the
undisputed facts show that they did not have an attorney-client relationship with, and thus
owed no duties to, Ms. Storfer with respect to the divorce, and further that Ms. Storfer
effectively waived any duties owed to her. Defendants’ motion rests almost entirely on
disputed material facts, and so summary judgment is not proper.
A.

Attorney-Client Relationship

“Whether an attorney-client relationship exists is a question of fact.” Berry v.
McFarland, 278 P.3d 407, 411 (Idaho 2012) (internal quotation marks omitted). An
attorney-client relationship is generally formed by “assent by both the putative client and
attorney.” Id. If a putative client seeks the attorney’s advice, and the attorney “engages
in conduct that could reasonably be construed as so agreeing, then there is an attorneyclient relationship.” Id. An attorney-client relationship may also be formed if the
attorney “fail[s] to clarify whom the attorney is representing where, under the
circumstances, one of the parties could reasonably believe that the attorney is
representing that person’s interests.” Id. Once an attorney establishes an attorney-client
relationship with a client, that relationship is imputed to each attorney practicing within
the same law firm. See IRPC 1.10(a) (“While lawyers are associated in a firm, none of
them shall knowingly represent a client when any one of them practicing alone would be
prohibited from doing so by Rules 1.7 or 1.9.”).

Memorandum Decision and Order-11

Attorney Wakefield indisputably formed an attorney-client relationship with
Ms. Storfer in 2002 when he prepared the couple’s estate plan. Dkt. 24-2 at 3 (Wakefield
Depo. at 7-8). And Attorney Wakefield cannot reasonably argue that he represented
neither Mr. Kline nor Ms. Storfer on September 27 when he independently determined
that the couple needed to dissolve the trust, drafted a notice of dissolution, and then had
the couple sign the notice of dissolution. Dkt. 24-2 at 14-15 (Wakefield Depo. at 50, 5253). Attorney Wakefield’s representation of Ms. Storfer in the estate matter is imputed to
Wakefield & Dwelle and Attorney Dwelle. See IRPC 1.10.
Defendants’ attempt to ignore the relationship between Attorney Wakefield and
Ms. Storfer by arguing that they never formed attorney-client relationship with
Ms. Storfer as to the divorce matter completely misses the mark. See Defs.’ Reply at 4-6.
As Ms. Storfer has explained, she need not have formed an attorney-client relationship
with Defendants regarding the divorce in order to have a claim against Defendants. Pl.’s
Opposition at 7-13.
Further, Ms. Storfer has presented sufficient evidence to create a factual dispute
regarding whether she and Attorney Dwelle formed a separate attorney-client relationship
during the divorce proceeding. Taking the facts in a light most favorable to Ms. Storfer,
(1) Ms. Storfer did not have time to read and did not understand the waiver,2 Dkt. 24-1 at

2

Defendants’ argument that Ms. Storfer is bound by the waiver even if she did not have time to read it and did not
understand it fundamentally takes for granted that a conflict waiver is an ordinary, at-arm’s-length contract between
adversaries. Defs.’ Reply at 9-10. Rather, it is the attorney’s duty to ensure the client or former client gives
informed consent. IRPC 1.0(e), Cmt. 6. As discussed more fully below, if Ms. Storfer did not in fact have time to
read and did not understand the waiver, and if Defendants did not adequately explain the conflict, waiver, and
alternatives, then Defendants failed to obtain informed consent and the waiver is invalid. See IRPC 1.0(e), Cmt. 6.

Memorandum Decision and Order-12

14-15 (Storfer Depo. at 37-42); (2) Ms. Storfer believed that Attorney Dwelle was
helping the couple out and did not understand that Attorney Dwelle was representing
only Mr. Kline, Dkt. 24-1 at 13 (Storfer Depo. at 35-36); and (3) Attorney Dwelle gave
Ms. Storfer legal advice, including that Ms. Storfer was “getting a good deal” in the
divorce, Dkt. 24-1 at 16 (Storfer Depo. at 45-48). Even though Ms. Storfer signed the
waiver form, which stated that Defendants could not represent both Mr. Kline and
Ms. Storfer in an action for divorce, Dkt. 24-1 at 19, such a waiver does not necessarily
negate conduct of the parties that may amount to an attorney-client relationship.
Cf. Berry, 278 P.3d at 411.
To the extent that Defendants blame Ms. Storfer’s supposed confusion or
misunderstanding on Mr. Kline, Defendants again fail to recognize that it was their duty
to ensure that Ms. Storfer fully understood the nature and scope of her relationship with
Defendants. See IRPC 1.0(e), Cmt. 6. Attorney Dwelle unwisely relied on Mr. Kline,
Ms. Storfer’s adverse party, to relay information (or possibly misinformation) between
herself and Ms. Storfer. See Dkt. 26-5 at 2, 5 (e-mails from Mr. Kline, which twice
stated that Ms. Storfer did not know her own address). If Ms. Storfer was truly a pro se
party as Attorney Dwelle now claims, Attorney Dwelle should have communicated with
Ms. Storfer directly.
Therefore, Attorney Wakefield may have breached the duties Defendants owed to
Ms. Storfer as a current client by advising her to sign the notice of dissolution and by
representing both her and Mr. Kline in that transaction, depending on the timing and

Memorandum Decision and Order-13

effectiveness of the waiver. Attorney Dwelle’s representation of Mr. Kline in the divorce
matter may amount to a breach of the duties Defendants owed to Ms. Storfer as a current
or former client, depending on when the attorney-client relationship ended and whether
Ms. Storfer effectively waived the duties owed to her.
B.

End of the Attorney-Client Relationship

An attorney-client relationship typically ends when the attorney finishes working
on the specific matter for which he or she was retained. Berry, 278 P.3d at 411. But “[i]f
the attorney agrees to handle any matters the client may have, the relationship continues
until the attorney or client terminates the relationship.” Id.
Defendants’ inconsistent admissions alone create disputed facts on this issue. In
August 2012, Defendants stated that the attorney-client relationship ended when
Ms. Storfer signed the waiver on September 27, 2010, Dkt. 26-4 at 15; then, in December
2013, that it ended at the August 20, 2010, meeting, Dkt. 24-1 at 38 (Dwelle Depo. at
16); and, most recently, that it ended when Attorney Wakefield finished drafting the
couple’s estate plan in 2003, Defs.’ MSJ at 16. Attorney Wakefield’s own testimony
indicates that the attorney-client relationship existed as of September 27, when he
prepared, and instructed the couple to sign, the notice of dissolution. Dkt. 24-2 at 14
(Wakefield Depo. at 50, 52). And Ms. Storfer has put forth sufficient evidence to show
that the relationship may have continued throughout the divorce proceeding. Dkt. 24-1 at
13-16 (Storfer Depo. at 35-48).

Memorandum Decision and Order-14

Importantly, Defendants have no engagement or disengagement letters to support
their claim that the representation ended in 2003 with the conclusion of the estate
planning, nor do they have any notes, e-mails, time records, or calendar entries to show
that the August 20 meeting ever took place. Dkt. 24-1 at 38, 42 (Dwelle Depo. at 16-18,
42). Mr. Kline’s notes, the only documentary support Defendants offer of the August 20
meeting, are completely illegible. Dkt. 24-1 at 30-33. This lawsuit is a prime example of
why attorneys are wise to thoroughly document their activities and communications in a
client’s file.
C.

Duties Owed to Current Clients

The Idaho Rules of Professional Conduct (“IRPC”) define the contours of the
duties each attorney owes to his or her current and former clients. Bishop, 272 P.3d at
1251; see also Preamble to IRPC, Cmt. 20 (stating that the IRPC is “not designed to be a
basis for civil liability” but that “since the [IRPC] establish[es] standards of conduct by
lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable
standard of conduct.”). IRPC 1.7(a)(1) prohibits a lawyer from simultaneously
representing current clients if “the representation of one client will be directly adverse to
another client.” Similarly, “a lawyer cannot undertake common representation of clients
where contentious litigation or negotiations between them are imminent or
contemplated.” IRPC 1.7, Cmt. 29.
Defendants indisputably formed an attorney-client relationship with Ms. Storfer in
2002. That relationship almost certainly existed as of September 27, 2010, when

Memorandum Decision and Order-15

Attorney Wakefield had Ms. Storfer sign the notice of dissolution, and may have
continued throughout the divorce proceeding. Defendants owed her duties as a current
client so long as the attorney-client relationship continued. See Blough, 974 P.2d at 72.
D.

Duties Owed to Former Clients

Even after the representation of a client ends, “a lawyer has certain continuing
duties with respect to confidentiality and conflicts of interest.” IRPC 1.9, Cmt. 1;
Damron v. Herzog, 67 F.3d 211, 214 (9th Cir. 1995) (holding that Idaho lawyers owe
their former clients continuing duties of loyalty and confidentiality). These duties
prohibit an attorney from “represent[ing] an interest adverse to a former client on a matter
substantially related to the matter of engagement.” Damron, 67 F.3d at 214; see also
IRPC 1.9(a) (“A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related matter in which
that person’s interests are materially adverse to the interests of the former”).
A matter is substantially related if it “involve[s] the same transaction or legal
dispute or if there otherwise is a substantial risk that confidential factual information as
would normally have been obtained in the prior representation would materially advance
the client’s position in the subsequent matter.” IRPC 1.9, Cmt. 3. For example, “a
lawyer who has represented multiple clients in a matter [could not] represent one of the
clients against the others in the same or a substantially related matter after a dispute arose
among the clients in that matter,” IRPC 1.9, Cmt. 1, and “a lawyer who has represented a
businessperson and learned extensive private financial information about that person may

Memorandum Decision and Order-16

not then represent that person’s spouse in seeking a divorce,” IRPC 1.9, Cmt. 3.
Ms. Storfer also points to Mathias v. Mathias, 525 N.W.2d 81, 84 (Wis. Ct. App. 1994),
for the proposition that “as a matter of law . . . estate planning which is reasonably
contemporaneous with initiation of divorce proceedings is substantially related to issues
which may arise in those proceedings.”
Here, there are disputed material facts regarding whether the estate and divorce
matters were substantially related. The couple’s estate plan structured and managed the
joint ownership of their property as co-trustees, and by its own terms, provided for the
disposition of that property at death or divorce. Dkt. 26-2 at 56. The division of the
couple’s marital property, which was held in that trust, was central to the divorce. And
according to Attorney Wakefield, the only practical way to divide the marital property in
divorce was to first dissolve the trust. Dkt. 24-2 at 14 (Wakefield Depo. at 52).
Crucially, when Attorney Wakefield advised Ms. Storfer and Mr. Kline to dissolve
the trust, the estate and divorce matters were utterly indistinguishable. The trust was
dissolved so that the parties could divide the property in divorce. Dkt. 24-1 at 21 (“The
trustees are divorcing and allocating the trust property by means of a Property Settlement
Agreement . . . .”). The same day, maybe before or maybe after Ms. Storfer signed the
notice of dissolution, Defendants instructed her to sign a conflict waiver so that
Defendants could represent Mr. Kline in an action for divorce against Ms. Storfer, their
current or former client.

Memorandum Decision and Order-17

Although Attorney Wakefield did not believe any true conflict existed between the
two matters, he admitted that because he “was privy to certain financial information
about them while [he] was doing the estate planning, it could be that [he] would be
disadvantaging one or the other if [he] represented one or the other.” Dkt. 24-2 at 15
(Wakefield Depo. at 55). Moreover, the facts of this case mirror the example given in the
IRPC, which prevents a lawyer who represented multiple clients in a matter from
representing just one of them against the other in a substantially related matter after a
dispute arose among them. IRPC 1.9, Cmt. 1. Given that the timing and substance of
these two matters overlapped significantly, issues of fact remain regarding whether
Defendants owed Ms. Storfer continuing duties of loyalty and confidentiality throughout
the divorce proceeding.
F.

Waiver of Duties

IRPC 1.7(b)(4) and IRPC 1.9(a) provide that a lawyer may represent a client
despite a conflict of interest if the client gives “informed consent, confirmed in writing.”
“Informed consent” requires that the lawyer “communicat[e] adequate information and
explanation about the material risks of and reasonably available alternatives to the
proposed course of conduct.” IRPC 1.1(e); see also IRPC 1.7, Cmt. 18. It may be
appropriate, in some circumstances, for the lawyer to advise the client to consult with
another attorney. Preamble to IRPC, Cmt. 6. Whether the client was represented by
another attorney or was experienced in legal matters is relevant to determining the
effectiveness of the waiver. Id.

Memorandum Decision and Order-18

Informed consent may be “given in writing by the person or a writing that a
lawyer promptly transmits to the person confirming an oral informed consent.” IRPC
1.1(b). But the writing requirement “does not supplant the need in most cases for the
lawyer to talk with the client, to explain the risks and advantages, if any, of representation
burdened with a conflict of interest, as well as reasonably available alternatives, and to
afford the client a reasonable opportunity to consider the risks and alternatives and to
raise questions and concerns.” IRPC 1.7, Cmt. 20. If the attorney fails to adequately
inform the client of the conflict, then the waiver may be invalid. Preamble to IRPC, Cmt.
6.
Disputed facts remain regarding the effectiveness of the waiver. First, the waiver
itself fails to explain the material risks and reasonable alternatives to waiving the conflict,
and even goes so far as to claim that there was no conflict at all. Dkt. 24-1 at 19.
Ms. Storfer denies that Defendants orally explained the risks of and alternatives to the
waiver, Dkt. 24-1 at 14-15 (Storfer Depo. at 37-42), and Defendants testified that they
told Ms. Storfer that no true conflict existed, Dkt. 24-2 at 15 (Wakefield Depo. at 55);
Dkt. 24-1 at 43 (Dwelle Depo. at 33). Second, Ms. Storfer has testified that she was
inexperienced in legal matters, was not provided with the waiver before that day, and did
not have time to read the waiver at the meeting. Dkt. 24-1 at 14-15 (Storfer Depo. at 3742). Finally, it is undisputed that Ms. Storfer was not represented by independent
counsel.

Memorandum Decision and Order-19

Even if the waiver were effective, the parties genuinely dispute when Ms. Storfer
waived the duties Defendants owed to her as either a current or former client. Defendants
now claim that the waiver was effective on August 20, 2010, when Attorney Dwelle
discussed the conflict with Ms. Storfer. Dkt. 24-1 at 38 (Dwelle Depo. at 16). But
Ms. Storfer claims the August 20 meeting never took place, Dkt. 24-1 at 17 (Storfer Depo
at 50), and Defendants have failed to retain any documentation of that meeting.
Assuming the August 20 meeting never occurred, the record does not reflect which
document—the waiver or dissolution of trust—Ms. Storfer signed first on September 27.
In short, Ms. Storfer’s legal malpractice claims rest on numerous disputed material
facts for trial, and so summary judgment is not proper.
II.

Negligent Infliction of Emotional Distress
For a plaintiff to succeed on a negligent infliction of emotional distress claim, the

plaintiff must show “(1) a legal duty recognized by law; (2) a breach of that duty; (3)
a causal connection between the defendant's conduct and the plaintiff's injury; . . . (4)
actual loss or damage” and (5) “a physical manifestation of the plaintiff's emotional
injury.” Frogley v. Meridian Joint Sch. Dist. No. 2, 314 P.3d 613, 624 (Idaho 2013). An
attorney will general owe a legal duty to a plaintiff only if the attorney and plaintiff had
an attorney-client relationship. See Estate of Becker v. Callahan, 96 P.3d 623, 627
(Idaho 2004); Harrigfeld v. Hancock, 90 P.3d 884 (Idaho 2004). For the reasons
discussed above, Defendants are not entitled to summary judgment on this claim.

Memorandum Decision and Order-20

CONCLUSION
Defendants’ motion for summary judgment rests on numerous disputed material
facts going to the duration of their attorney-client relationship with Ms. Storfer, the duties
Defendants may have owed Ms. Storfer, and the timing and effectiveness of Ms. Storfer’s
waiver of those duties. 3 Defendants’ motion for summary judgment is denied. It will be
up to a jury to resolve the disputed issues of fact after weighing all the evidence and the
credibility the testifying witnesses.
ORDER
IT IS ORDERED:
Defendants’ Motion for Summary Judgment (Dkt. 24) is DENIED.
This matter shall be set for jury trial on Tuesday, December 9, 2014 at 9:30 a.m. at
the Federal Courthouse in Coeur d’Alene, Idaho.
Motions in limine, if any, shall be filed thirty (30) days prior to trial. Response to
motions in limine, if any, shall be filed within fourteen (14) days from the filing of the
motion. The Court, upon a review of the pending motions, will determine whether a
hearing is necessary.
Witness lists shall be filed fourteen (14) days prior to trial, unless otherwise
ordered or agreed upon. Witness lists shall contain the material listed in Fed. R. Civ. P.
26(a)(3)(A)&(B), and shall include a brief description of the subject matter of the
witnesses' expected testimony.

3

The Court has not considered the opinion of Kellie Kuster in any part of its decision.

Memorandum Decision and Order-21

Exhibit list shall be exchanged between the parties and submitted to the Court
within fourteen (14) days prior to trial. The exhibit lists shall follow the guidelines set out
in Local Rule 16.3. Plaintiff's Exhibits should be numbered and listed starting with “1.”
Defendants’ Exhibits should be numbered and listed starting with “500.” Each exhibit
should be labeled with a color coded sticker. (Yellow for plaintiff; blue for defendant.
Stickers are available at the Clerk's Office, US courthouse.) The number of the exhibit
and number of the case should be on all exhibits. A copy of the exhibits should be
delivered to opposing counsel. A set of originally marked exhibits and a copy of the
exhibit list shall also be delivered to the Court on the day of trial, along with two
complete sets of exhibit copies and exhibit lists for use of the Court and staff attorney.
Impeachment exhibits will be marked, sealed and delivered only to the Court. Except for
good cause shown, no exhibits or testimony will be received in evidence at trial unless
presented in accordance with this order.
Trial briefs shall be exchanged between the parties and submitted to the Court
within fourteen (14) days prior to trial. The Court is to be advised and briefed on all
anticipated evidentiary problems before trial; no motions will be heard on the morning
of a trial unless approved by the court in advance.
All proposed jury instructions are required to be filed and served at least fourteen
(14) days prior to trial. The proposed jury instructions shall follow the guidelines set forth
in Local Rule 51.1. Proposed jury instructions shall also be provided to chambers by

Memorandum Decision and Order-22

sending a “clean” set without cites or numbers, in a Wordperfect or WORD compatible
document, to [e-mail].
All proposed voir dire questions are to be filed at least fourteen (14) days prior to
trial. The Court will conduct voir dire of the jury panel. Counsel will be allowed to
briefly question the jury panel following the Court's voir dire.

DATED: August 13, 2014

_________________________
Edward J. Lodge
United States District Judge

Memorandum Decision and Order-23