Conflict Negates Third Party Attorney Liability

The Montana Supreme Court has affirmed the dismissal of claims brought against an attorney based on the conclusion that the lawyer owed no duty to the plaintiffs.

Facts

When Melissa Surbrugg learned she was pregnant in 2015, she arranged for Paul Henning and Aaron Davies of Utah to adopt her child. Henning and Davies (Adoptive Parents) filed a petition for adoption in Utah district court before Surbrugg gave birth. In January 2016, Surbrugg gave birth to L.S. in Helena; Adoptive Parents arrived in Helena shortly thereafter. Surbrugg and L.S. tested positive for amphetamines, methamphetamine, and Suboxone, leading hospital staff to report the incident to the Department of Public Health and Human Services (DPHHS). The hospital discharged Surbrugg before a child protection specialist began investigating. Adoptive Parents took temporary custody of L.S. after Surbrugg appointed them temporary guardians.

With the help of her attorney, Susan Ridgeway with Axilon Law Group, Surbrugg executed an affidavit relinquishing her parental rights to L.S. Ridgeway also helped Surbrugg sign an Interstate Compact on the Placement of Children (ICPC) Request Form 100A because L.S.’s adoption involved placement across state lines. At the time, Surbrugg was married to Christopher Shelton but believed Donald Gleed to be L.S.’s father. Surbrugg therefore listed Gleed as the father on the ICPC request form. Surbrugg’s ICPC submission included an affidavit from Gleed relinquishing his parental rights. Ridgeway also included a cover letter noting that, though legally married to Shelton, Surbrugg did not believe him to be L.S.’s father.

The adopting couple filed a petition in Utah to terminate Shelton’s parental rights; after litigation, they prevailed

In 2018, as the Utah courts considered the adoption, Plaintiffs filed the complaint at issue here. Plaintiffs brought seven counts against the State, Ridgeway, Axilon Law Group, and Adoptive Parents. In Count I, Plaintiffs sought a declaration that the State violated the ICPC. Count II alleged that the State violated Plaintiffs’ state constitutional substantive due process rights. Count III alleged negligence against the State. Counts IV and V alleged negligence and gross negligence against all Defendants. Counts VI and VII alleged negligent infliction of emotional distress against all Defendants and negligent misrepresentation against the State.

No duty

Here, at the time Ridgeway began assisting Surbrugg with the adoption, Shelton was not an intend¶¶ 21-23 (citation omitted). ed beneficiary; in fact, Ridgeway understood him not to be the child’s father. Unlike the limited exception we enunciated in Watkins Trust, Ridgeway and her client did not engage in adoption planning to benefit Shelton or the Costas. Watkins Trust, ¶¶ 21-23 (citation omitted). 

Once identified as the biological father, Shelton vigorously opposed L.S.’s adoption—including litigating before Utah’s highest court—demonstrating the adversarial nature of this proceeding. Because this proceeding was adversarial and there was no mutual intent to benefit Plaintiffs, the general rule that an attorney owes no duty to nonclient third parties applies. Crane Creek Ranch, ¶ 11 (citation omitted).  To impose on Ridgeway a duty of care to Shelton in this context would be inconsistent with her ethical obligation under M. R. Pro. Cond. 1.7 to avoid a conflict of interest with her client Surbrugg.

With Ridgeway owing no duty to Plaintiffs, they can prove no set of facts that would give rise to their negligence claims against her.

(Mike Frisch)