## Facts

- Steve Sickler and Cathy Mettenbrink owned Baristas & Friends, Inc. (B & F), a closely held corporation that expanded its coffee-shop business through franchising.
- B & F retained attorneys to prepare franchise materials; amid disputes with franchisees, the attorneys retained Robert Kirby to evaluate the franchise documents for legal defects.
- Kirby reported to the attorneys that the franchising documents had numerous serious defects and that the franchising program had significant legal problems.
- Kirby had no direct contact with Sickler or Mettenbrink during the evaluation, despite their roles as owners/directors and their potential personal exposure.
- When a franchisee later sued B & F and also sued Sickler and Mettenbrink individually, Kirby was retained to represent B & F while another attorney represented the individuals.
- During the litigation, Kirby continued to work through co-counsel and did not directly advise Sickler or Mettenbrink of his assessment that the franchise documents were seriously defective.
- After an unfavorable result in the franchisee litigation, B & F, Sickler, and Mettenbrink sued Kirby and his firm for legal malpractice/professional negligence, alleging failures in advising and communicating that caused financial harm.

## Issues

1. Whether the summary judgment record permitted a reasonable fact finder to conclude that Kirby formed an attorney–client relationship with Sickler and Mettenbrink individually, not only with B & F.
2. If Kirby did not represent the individuals, whether he nevertheless owed them a duty of reasonable care as foreseeable third parties directly affected by his legal services.
3. Whether disputed facts concerning duty, scope of representation, and standard of care precluded summary judgment in the malpractice action.

## Decision

- The Nebraska Court of Appeals reversed the district court’s grant of summary judgment for Kirby and his firm.
- The court held that genuine issues of material fact existed regarding whether Kirby’s representation extended to Sickler and Mettenbrink personally.
- The court also held that genuine issues of material fact existed regarding whether Kirby owed a duty to the individuals as foreseeable third parties, even if his formal client was only B & F.
- The case was remanded for further proceedings.

## Legal Principles

- Summary judgment is proper only when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law; evidence and reasonable inferences are viewed in favor of the nonmovant.
- Legal malpractice requires proof of the attorney’s employment, neglect of a reasonable duty, and proximate causation of loss (tracking duty, breach, causation, and damages).
- An attorney’s duty generally runs to the client, but may extend to nonclients when specific facts establish a duty under negligence principles.
- The existence and scope of an attorney–client relationship may be shown by express agreement or implied from conduct and the reasonable expectations of the parties.
- In malpractice and negligence cases, the fact finder ordinarily determines the standard of care required under the circumstances and whether the conduct met that standard.

## Conclusion

The court held that, in a closely held corporate context, disputed evidence about counsel’s assumed responsibilities and the foreseeability of harm to the owners created triable fact questions on client scope and duty, making summary judgment improper.


Sickler v. Kirby, 19 Neb. App. 286, 805 N.W.2d 675 (Neb. Ct. App. 2011)