United States District Court, D. Idaho
DINARA M. STORFER, an individual, Plaintiff,
ANNE DWELLE, and individual; ROBERT WAKEFIELD, an individual; WAKEFIELD & DWELLE, PLLC, an Idaho professional limited liability company, Defendants.
MEMORANDUM DECISION AND ORDER
EDWARD J. LODGE, District Judge.
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 attorney-client relationship with Ms. Storfer regarding an earlier estate matter, and the parties dispute the duration of that attorney-client relationship, whether an independent attorney-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.
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).
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 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 Memorandum Decision and Order-4 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 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 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 41-42, 49). Most recently, in their motion for summary ...