Olivia Covington for www.theindianalwyer.com
A former associate of now-disgraced Indianapolis attorney William Conour scored a victory in the Indiana Court of Appeals Friday when the court found he did not breach a duty to one of Conour’s clients who accused him of providing inaccurate or misleading information.
After being severely injured in a head-on collision in April 2010, Rene DiBenedetto hired Conour of the Conour Law Firm to represent her. Timothy Devereux was an associate at the firm at that time, but he was not assigned to DiBenedetto’s case.
DiBenedetto’s case ultimately settled, with an initial $50,000 insurance settlement awarded to her in January 2011. However, the settlement proceeds were not paid out by the following summer, so DiBenedetto and her father went, unannounced, to the law office to ask about the money.
Conour was not present, so Devereux agreed to speak with her. Devereux consulted with a paralegal and the firm’s case-management software and ultimately advised DiBenedetto that she would not receive the funds until an underinsurance claim had been settled. He then further advised DiBenedetto to follow up with Conour for more specific information.
The underinsurance claim was settled in September 2011, but DiBenedetto once again never received the $50,000 award from that settlement. Devereux, concerned about Conour’s business practices, resigned from the firm in December 2011. Conour was ultimately charged in 2012 with stealing $ 4.5 million from at least 25 clients, including the $100,000 from DiBenedetto. Conour is currently serving a 10-year sentence in West Virginia after pleading guilty in 2013 and has also resigned from the bar.
DiBenedetto brought a legal malpractice claim against Devereux, alleging he was negligent and had breached his fiduciary duties and contractual obligations by not providing her with accurate information. The trial court granted summary judgment to the attorney, and during oral arguments before the Indiana Court of Appeals in April, Devereux, representing himself, said it was “common practice†for attorneys to hold money in trust while settling underinsurance claims.
A majority of a panel of the Indiana Court of Appeals accepted that argument, finding that Devereux had not breached any duty owed to DiBenedetto. Judge Robert Altice, writing for the majority joined by Judge Patricia Riley, said Devereux owed DiBenedetto a duty to provide truthful, accurate, non-misleading information during their one-time meeting in the summer of 2011, but that as a matter of law, that duty had not been breached.
During trial, DiBenedetto designated the affidavit of an attorney who said Devereux “should have taken some actions to protect DiBenedetto by investigating further†once he realized the funds had not been disbursed after several months. But Devereux pointed to the similar case of Devereux v. Love, 30 N.E.3d 754, 757 (Ind. Ct. App. 2015), in which the appellate court held his decision not to discuss his concerns about Conour with clients did not amount to a breach of duty.
Further, Devereux designated his own attorney affidavit that claimed it was “common practice that medical bills or liens are frequently not resolved with the payment of limits by the underlying tortfeasor’s carrier… .†Thus, because Devereux had no reason to suspect Conour of wrongdoing at the time of his meeting with DiBenedetto, his advice was not inaccurate or necessarily misleading.
“Devereux’s duty was to provide DiBenedetto with accurate information, and he did just that,†Altice wrote.
However, Judge Terry Crone dissented, writing in a separate opinion there exists at least a genuine issue of material fact as to whether an attorney-client relationship existed between Devereux and DiBenedetto, considering that Devereux did not tell DiBenedetto she could not rely on him for advice in her case.
Further, Crone wrote that “(s)imply 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.†Thus, Crone said he would reverse the grant of summary judgment and remand the case for trial.
In addition to summary judgment, Devereux also sought an award of attorney fees in the case, but the appellate panel rejected that request, finding DiBenedetto’s appeal was not brought in bad faith. Crone also would deny the attorney fees.
The case is Rene DiBenedetto v. Timothy Devereux, 49A05-1609-CT-2146.
