Thursday, November 6, 2008

No Vicarious Liability For Alleged Negligence

The dismissal of a legal malpractice claim against an attorney and his former law partners was affirmed by the Washington Court of Appeals Division III. The client had consulted with the lawyer while in the partnership but had been retained after he had withdrawn. The fact that he had maintained an office at the former firm's location and had used a retainer agreement on the letterhead of the former firm was insufficient to establish partnershiip liability:

Regarding Ms. Estep's claims against the former partners, a partnership is
generally liable for a tort committed by a partner in the course of partnership business,
and all partners are liable for partnership obligations.  RCW 25.05.120; .125. Ms.
Estep contends summary judgment for her is proper based on vicarious liability
because she knew of the partnership before it dissolved and she did not receive notice
of partnership dissolution.  Further, she argues Mr. Hamilton acted as though he had
authority by using a partnership retainer form and working in the old partnership
location.  No material fact issues remain, contrary to her alternative theory arguments. 

       Essential to a principal's vicarious liability is some negligence by the alleged
agent.  Above we reasoned Mr. Hamilton was not negligent, so her vicarious liability
founded on apparent authority fails.  We discuss apparent authority as an alternative
ground to affirm.  Ms. Estep has the burden of establishing apparent authority.  State v.
French, 88 Wn. App. 586, 595, 945 P.2d 752 (1997).  "An agent's apparent authority to
bind a principal depends upon the objective manifestations of the principal to a third
person."  Id. at 595. Ms. Estep's subjective beliefs must be objectively reasonable. 
King v. Riveland, 125 Wn.2d 500, 507, 886 P.2d 160 (1994). None is shown here.

       While Ms. Estep met with Mr. Hamilton and received his business card when Mr.
Hamilton was a partner with Mr. Hackney and Mr. Carroll, she did not retain Mr.
Hamilton until after the partnership dissolved.  Ms. Estep points to no acts of Mr.
Hackney or Mr. Carroll after August 7, 2003 that would lead a reasonable person to
believe Mr. Hamilton was acting with the apparent authority of his former partners.

(MiKe Frisch)

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