## Facts

- Thelma L. Phillips retained attorney David W. Carson and his professional partnership to probate her deceased husband’s estate under an arrangement intended to cover her legal needs during probate.
- During the representation, Carson solicited substantial personal loans from Phillips for his own financial problems.
- Phillips loaned Carson $200,000 secured by a recorded second mortgage on Arizona property, and later loaned an additional $70,000.
- Carson persuaded Phillips to release the Arizona mortgage in exchange for a mortgage on Kansas property, representing it as better security.
- Carson prepared the Kansas mortgage but failed to record it, and he did not advise Phillips to obtain independent counsel despite the self-interested attorney-client business transaction.
- Carson used law-firm resources (including firm stationery and personnel) in connection with the loan-related documentation.
- Carson later filed a Chapter 11 bankruptcy petition; the bankruptcy court avoided the unrecorded Kansas mortgage as a preferential transfer under 11 U.S.C. § 547(b), leaving Phillips effectively unsecured.
- Phillips obtained relief from the automatic stay to pursue malpractice and related claims in state court.
- The district court granted summary judgment against Carson on negligence, but granted summary judgment for the firm and other partners on the ground Carson acted outside partnership business and authority.

## Issues

1. Whether summary judgment against Carson on legal malpractice was proper where negligence is generally fact-dependent.
2. Whether the professional partnership and its partners could be vicariously liable for Carson’s conduct under partnership principles (ordinary course of business, authority, or apparent authority), or whether those questions required trial.

## Decision

- Affirmed summary judgment against Carson for professional negligence.
- Reversed summary judgment for the law firm and individual partners.
- Remanded for further proceedings on whether Carson’s acts or omissions were within the usual course of the partnership’s business or within his authority or apparent authority.

## Legal Principles

- Summary judgment is generally disfavored in negligence cases but is proper when no genuine issue of material fact remains and only one legal conclusion is permissible.
- Legal malpractice requires: (1) an attorney-client relationship creating a duty, (2) breach by act or omission, (3) proximate causation, and (4) actual damages.
- Attorney-client business transactions are subject to strict scrutiny; the attorney owes the client the highest degree of fidelity and good faith, and such dealings are construed most favorably to the client.
- A partnership may be liable for a partner’s wrongful acts committed in the ordinary course of partnership business or with partner authority; apparent-authority questions may depend on what the client reasonably understood from the lawyer’s conduct and use of firm indicia.
- Whether a lawyer securing a large personal loan from a current client was apparently carrying on the usual law business of the partnership, and whether the wrongful acts were in the usual course of business or with partners’ consent, can present factual issues for the trier of fact.

## Conclusion

The court held Carson liable for malpractice as a matter of law based on undisputed breaches that caused Phillips to lose her secured position in bankruptcy, but ruled that the firm and partners were not entitled to summary judgment because vicarious-liability questions about scope of partnership business and apparent authority required factfinding.


Phillips v. Carson, 240 Kan. 462, 731 P.2d 820 (Kan. 1987)