Christensen v. Barrett

2008 UT 64
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Christensen & Jensen, P.C., No. 20061044
fka Christensen, Jensen & Powell,
P.C.; and L. Rich Humpherys,
Individually,
Plaintiffs/Counterclaim
Defendants and Appellees,
v.
Barrett & Daines; W. Scott Barrett,
fka Barrett & Brady; Robert Slusher, F I L E D
Defendants/Counterclaim
Plaintiffs and Appellants. September 16, 2008
---
Third District, Salt Lake
The Honorable Timothy R. Hanson
No. 030916399
Attorneys: Roger P. Christensen, David G. Williams, Rodney R.
Parker, Karra J. Porter, Salt Lake City,
for plaintiffs
Charles R. Brown, E. Barney Gesas, Walter A.
Romney, Jr., Salt Lake City, N. George Daines,
Logan, for defendants
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 Appellants Scott Barrett and Robert Slusher, a client
of Barrett’s and former client of Appellees, appeal the trial
court’s rulings in favor of Christensen & Jensen, P.C. (formerly
Christensen, Jensen and Powell, P.C.) and its attorney, L. Rich

1 Our reference to the Campbell v. State Farm or the
Campbell case encompasses all of the proceedings in the case’s
long history, including the original trial of the Campbells’
claims against State Farm, the appeal by State Farm of the
judgment entered after that trial, the petition for rehearing to
this court, the petition for a writ of certiorari to the United
States Supreme Court, the appeal before the United States Supreme
Court, and the hearing on remand to this court. See Campbell v.
State Farm, 2004 UT 34, ¶¶ 2-3, 98 P.3d 409.
2 Slusher and the Ospitals were originally plaintiffs in
this case, but were later dismissed in 1987 due to a lack of
standing to assert bad faith claims against State Farm. The
dismissal was never challenged.
No. 20061044 2
Humpherys (collectively, Appellees) on claims arising from the
Campbell v. State Farm case.1
BACKGROUND
¶2 In 1981, Curtis Campbell, Robert Slusher, and Todd
Ospital were involved in an automobile accident that claimed the
life of Todd Ospital and left Slusher permanently paralyzed.
Curtis was insured by State Farm Mutual Automobile Insurance
Company (State Farm) with policy limits of $25,000 per claim. As
a result of the accident, Slusher sued Curtis and Todd Ospital’s
estate for personal injuries, and the estate--represented by
Todd’s parents, John and Winnifred Ospital (the Ospitals), cross-
claimed against Curtis for wrongful death (1981 Trial). During
that litigation, the Ospitals were represented by Appellees,
Slusher was represented by Barrett, and Curtis was represented by
an attorney retained by State Farm, Wendell E. Bennett. State
Farm and its representatives misrepresented to Curtis the
pertinent facts and issues concerning the litigation and failed
to settle or attempt to settle with Slusher or the Ospitals
despite having the opportunity to do so. Ultimately, in 1983,
Barrett obtained a $133,098.25 judgment against Curtis on behalf
of Slusher, and Humpherys obtained a $51,845.68 verdict against
Curtis (1983 Judgment) on behalf of the Ospitals.
¶3 Because of State Farm’s representation during the 1981
Trial, Curtis and his wife Inez (the Campbells) brought a bad
faith claim against State Farm (1983 Trial).2 Barrett and
Appellees undertook Curtis’ representation on that claim.
Subsequently, pursuant to a retainer agreement signed by Inez on
January 25, 1994, Appellees solely represented Inez on that
claim.

3 The Settlement Letter is the crux of this litigation and
is discussed fully in the next section.
4 Curtis passed away on December 5, 2001.
3 No. 20061044
THE CLIENT AGREEMENTS
¶4 In 1984, after obtaining their respective judgments
against Curtis, Slusher and the Ospitals agreed to abstain from
executing against Curtis’ personal assets, and in return, Curtis
agreed to share with them any recovery from his bad faith claim
against State Farm. In keeping with that agreement, Slusher, the
Ospitals, and Curtis executed a joint-representation agreement
(1984 Agreement).
¶5 The 1984 Agreement stipulated, amongst other things,
that Slusher and the Ospitals “are willing to covenant not to
execute against [Curtis’] personal assets in turn for [Curtis’]
agreement herein to share with them the recovery against State
Farm.” The agreement also stipulated that Curtis would retain
“Christensen, Jensen and Powell” and “Barrett and Brady” as his
attorneys in the litigation against State Farm, and required
Curtis’ cooperation and assistance in litigating against State
Farm. Furthermore, the agreement provided that any recovery left
after expenses and the payment of the 1983 judgments would be
shared amongst the parties, with 45% of the recovery going to
Slusher and the Ospitals respectively, and the remaining 10%
going to Curtis. Slusher and the Ospitals were to be kept fully
advised of the progress and status of the claim, and their
approval was required for any settlement of the claims against
State Farm. All parties to the 1984 Agreement agreed to be
represented by Barrett and Humpherys, though each party retained
his initial attorney separately in regards to his personal rights
and obligations under the 1984 Agreement.
¶6 In 1995, the 1984 Agreement was modified through an
oral agreement (1995 Agreement) to include Inez as a party to the
agreement and to divide any net recovery equally amongst the
parties, with one-third going to the Campbells, the Ospitals, and
Slusher, each. All other terms regarding the agreement remained
the same.
¶7 In 2001, after the receipt from State Farm of a
settlement letter (Settlement Letter),3 the 1995 Agreement was
memorialized in a December 7, 2001 agreement (2001 Agreement).4
By then, State Farm had paid the 1983 Judgment plus interest and
costs to Slusher and the Ospitals, and this was referenced in the
2001 Agreement. In addition, the 2001 Agreement memorialized the
disbursement schedule as agreed to in 1995 by the parties.

No. 20061044 4
Though the 2001 Agreement did not stipulate as to the
representation of the parties, it was assumed by all parties to
the 2001 Agreement that the representations as stipulated in 1984
were still in effect. As for Inez, she was solely represented by
Appellees. Thus the 2001 Agreement was signed by Slusher,
Curtis, the Ospitals, and Inez (collectively, the Clients), with
Slusher, Curtis, and the Ospitals being represented by both
Appellees and Barrett, while Inez was solely represented by
Appellees.
¶8 Also in 2001, Humpherys mailed two letters to the
Clients and to Barrett. The first letter was sent out in January
(January Letter) and the second letter was sent out eleven months
later, in December (December Letter). In the January Letter,
Humpherys referenced the 1995 Agreement that acceptance of any
settlement offers required their unanimous consent. In addition,
the January Letter explained to the Clients that they could
settle their claims individually by approaching State Farm to
seek a prorated settlement or by seeking an arrangement with a
litigation financing company. Humpherys also requested that the
Clients inform him if they wanted to pursue any of these
alternative means of settlement. The December Letter
specifically requested that the Clients communicate their
decisions and proposals regarding settlement to Humpherys in
writing.
THE SETTLEMENT LETTER
¶9 The bad faith claims against State Farm resulted in a
bifurcated trial with jury verdicts of $2,600,000 in compensatory
damages and $145,000,000 in punitive damages against State Farm.
The trial court reduced the compensatory damages to $1,000,000
and the punitive damages to $25,000,000. State Farm appealed and
the Campbells cross-appealed. On October 19, 2001, the Utah
Supreme Court reversed and reinstated the original jury verdict
(October Opinion).
¶10 Sometime in October of 2001, prior to the Utah Supreme
Court’s issuance of its opinion, State Farm made a settlement
offer of $10,000,000, which was unanimously rejected by the
Clients. After the October Opinion, but prior to the receipt of
the Settlement Letter, Humpherys had several conversations with
State Farm attorney, Michael Zimmerman, regarding the possibility
of the Campbells requesting a vacatur of the October Opinion from
the Utah Supreme Court in exchange for a substantial payment from
State Farm. Humpherys informed Zimmerman that such a request was
unlikely. On November 16, 2001, Humpherys received the
Settlement Letter dated November 14, 2001 from State Farm. In
the letter, State Farm proposed to escrow the sum of $150,000,000

5 No. 20061044
to be paid immediately to the Campbells upon the Utah Supreme
Court’s vacatur of its October Opinion. The relevant part of the
letter reads:
State Farm proposes to settle on the following terms:
(i) State Farm will immediately escrow the
sum of $150,000,000, to be paid to you and
your clients upon the Utah Supreme Court’s
vacating the opinion and decision issued on
October 19, 2001; and
(ii) you and your clients will join State
Farm in filing with the Utah Supreme Court a
notice, pursuant to Utah Rules of Appellate
Procedure 37, that the matter has been
settled in its entirety and is now moot, as
well as a request that the court vacate its
opinion and decision in the matter;
The terms of this proposed settlement are confidential
and shall not be admissible in this or any other court
proceeding. State Farm requests that you present this
offer to your clients and respond to me in writing by
noon on Friday, November 16, 2001.
In addition, the Settlement Letter stated that State Farm
intended to file a Petition for Certiorari in the United States
Supreme Court.
¶11 Upon receiving the Settlement Letter on November 16,
2001, Humpherys first contacted the Campbells and then the
Ospitals regarding its contents. They declined to accept the
offer if it required a vacatur of the October Opinion, as it
clearly did. Thereafter, Humpherys contacted Slusher and
informed him about the settlement offer and also informed him of
the others’ refusal to accept the offer based on the vacatur
condition. It is unclear from the record if Slusher accepted or
rejected the settlement offer, but it is clear that he did not
approve an outright rejection of the offer. However, the record
shows that the Clients and attorneys understood that pursuant to
the provisions of the 1984 and the 1995 Agreements, all
settlement offers had to be accepted unanimously. After speaking
with the Clients, but without corresponding with Barrett,
Humpherys delivered a letter to Zimmerman rejecting the
$150,000,000 and explaining that his clients would not stipulate
to the vacation of the opinion. After the rejection of the
offer, but before the execution of the December 2001 Agreement,
Humpherys mailed the Settlement Letter and the rejection letter

No. 20061044 6
to the Clients and to Barrett. Upon receipt of the letters,
Slusher contacted Humpherys and expressed his dissatisfaction
with Humpherys’ handling of the settlement offer, especially his
failure to initiate a meeting to discuss the issue. Slusher also
expressed dissatisfaction for not having been properly notified
of the amount and the material terms of the offer, claiming that
had he known all the material terms and the amount, he would have
agreed to the settlement offer.
¶12 State Farm filed its Petition for Rehearing with this
court on November 19, 2001, and upon its rejection by the court,
filed a Petition for Certiorari with the United States Supreme
Court. The United States Supreme Court granted State Farm’s
petition, reversed the $145,000,000 punitive damage award, and
directed a recalculation of the punitive damage award. See State
Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003).
This court recalculated the damages according to the United
States Supreme Court’s ruling, reducing the award to
$9,018,780.75. See Campbell v. State Farm Mut. Auto. Ins. Co.,
2004 UT 34, ¶ 51, 98 P.3d 409.
ATTORNEY FEE AGREEMENTS
¶13 Under the 1984 Agreement, Christensen & Jensen and
Barrett & Brady agreed to jointly represent Slusher, the
Ospitals, and Campbell. Though not expressly stated in the 1984
Agreement, the subsequent actions of the parties suggest that
attorney fees were to be divided equally between the two firms.
As the case progressed, however, Humpherys became the lead
counsel in the case. Thereafter, in 1990, Humpherys and Barrett
executed another agreement (1990 Agreement) which provided that
given the two attorneys’ respective involvement in the case, two-
thirds of the attorney fees would be apportioned to Christensen &
Jensen, while the remaining one-third would be apportioned to
Barrett’s office. The agreement also provided that Barrett would
continue to render “some assistance in the case” and Humpherys
would continue to be lead counsel.
PROCEDURAL HISTORY
¶14 After Campbell was finally adjudicated, Appellees filed
a declaratory judgment action seeking a determination as to how
attorney fees earned in Campbell should be divided between the
attorneys. Barrett counterclaimed for (1) a declaratory judgment
to enforce the 1984 and 1990 agreements, (2) damages for breach
of the joint-representation agreement’s implied covenant of good
faith and fair dealing, and (3) damages for breach of fiduciary
duty. Barrett and Slusher also counterclaimed against Appellees
for breach of fiduciary relationship, and Slusher separately

5 Prior to trial, the parties stipulated that in the event
the jury found that Barrett was not entitled to a percentage of
fees under the agreement, the trial court would determine the
amount he was entitled to based on equitable principles.
7 No. 20061044
counterclaimed for (1) legal malpractice breach of fiduciary
duty, (2) breach of contract, (3) constructive fraud, and
(4) breach of implied covenant of good faith and fair dealing.
¶15 Appellees filed a motion for summary judgment on
Slusher’s counterclaims, which was granted. The trial court
determined that “all of the loss theories advanced by
[Appellants] are based on the loss of the settlement offer.” The
court based its ruling on the standard for causation as
articulated by the Utah Court of Appeals in Kilpatrick v. Wiley,
Rein & Fielding, 909 P.2d 1283 (Utah Ct. App. 1996). In light of
that standard, the court determined that there were three issues
before the court: “(1) whether the Campbells and the Ospitals,
if advised differently, would have accepted State Farm’s offer on
November 16, 2001; (2) whether Mr. Slusher, if advised
differently, could have arranged for a separate settlement with
State Farm; and (3) Whether the Utah Supreme Court would or would
not have vacated its opinion in the State Farm case.” Based on
its analysis, the court determined that Appellants were unable to
meet the standard of causation required.
¶16 Meanwhile, Barrett’s claims proceeded to trial. At the
trial, the following special verdict questions were submitted to
the jury: (1) Whether a valid contract to divide attorney fees
obtained from the Campbell litigation existed between the
attorneys, with one-third of the fees going to Barrett and the
remaining two-thirds going to Christensen & Jensen; (2) whether
Barrett performed his obligation under the contract; and
(3) whether Christensen & Jensen unreasonably prevented Barrett
from performing his obligations under the contract. The jury
returned a unanimous special verdict, answering yes to the first
question and no to the rest. Thus, Barrett was precluded from
recovering under the attorney fee agreement, leaving only the
issue of equitable remedies, if any, to be decided by the trial
court.5
¶17 At a hearing on the issue of equitable remedy by the
trial court, the parties submitted evidence, presented oral
arguments, and responded to the trial court’s questions. Barrett
argued that he was entitled to $800,000 while Appellees argued
that he was only entitled to $21,350. Thereafter, the trial
court concluded that Barrett’s actual contribution to Campbell
was minimal and awarded him $25,000 in fees. Appellants
appealed.

6 Though initially presented as five different counterclaims
at the trial level, Slusher characterizes his counterclaims on
appeal as a legal malpractice claim brought under three theories:
breach of fiduciary duty, negligence, and breach of contract.
No. 20061044 8
¶18 We have jurisdiction pursuant to Utah Code section 78A-
3-102(3)(j) (Supp. 2008).
STANDARD OF REVIEW
¶19 In this case, we are presented with two issues:
(1) whether Appellees are liable for legal malpractice,6 and
(2) whether the trial courts’ equitable distribution of attorney
fees was proper. The trial court granted summary judgment to
Appellees on the malpractice claims. In reviewing a trial
court’s grant of summary judgment, we afford no deference to the
lower court’s legal conclusions and review them for correctness.
Blackner v. State Dep’t of Transp., 2002 UT 44, ¶ 8, 48 P.3d 949.
The granting of summary judgment is appropriate only in the
absence of any genuine issue of material fact and where the
moving party is entitled to judgment as a matter of law. Utah R.
Civ. P. 56(c). Thus, in reviewing a trial court’s grant of
summary judgment, we review the facts and all reasonable
inferences in the light most favorable to the nonmoving party.
Surety Underwriters v. E & C Trucking, Inc., 2000 UT 71, ¶ 15, 10
P.3d 338.
¶20 With respect to the attorney fee claim, Barrett argues
that the method employed by the trial court in deciding how much
he was entitled to amounted to an abuse of its discretion.
“Equity cases afford courts discretion and latitude in fashioning
equitable remedies.” Hughes v. Cafferty, 2004 UT 22, ¶ 24, 89
P.3d 148. In reviewing a lower court’s findings of fact in
equity cases, appellate courts in Utah have variously described
the standard as a “clearly erroneous” standard and a “clear
preponderance” standard. Compare Horton v. Horton, 695 P.2d 102,
105 (Utah 1984) (applyng a clear preponderance standard), and
Jensen v. Brown, 639 P.2d 150, 151-52 (Utah 1981) (holding that
in equity cases, “we reverse only when the evidence clearly
preponderates against the findings of the trial court”), with
MacKay v. Hardy, 896 P.2d 626, 629 (Utah 1995) (applying the
clearly erroneous standard), Bellon v. Malnar, 808 P.2d 1089,
1092 (Utah 1991) (also applying the clearly erroneous standard),
and Bountiful v. Riley, 784 P.2d 1174, 1175 (Utah 1989) (applying
clearly erroneous standard in equity cases). We conclude that in
practice, these standards are indistinguishable. We review a
trial court’s findings of fact for cases in equity for clear

7 “Many claims brought by clients against lawyers can
reasonably be classified either as for breach of fiduciary-duty
(continued...)
9 No. 20061044
error, and review its conclusions of law for correctness. RHN
Corp. v. Veibell, 2004 UT 60, ¶ 35, 96 P.3d 935.
ANALYSIS
I. LEGAL MALPRACTICE CLAIMS
¶21 Legal malpractice is a general term used to describe a
lawyer’s wrongful action or omission that causes injury to a
client. “Clients wronged by their lawyers may sue for damages
based on breach of contract, breach of fiduciary duty, or
negligence.” Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d
1283, 1289 (Utah Ct. App. 1996) (citing Roy R. Anderson & Walter
W. Steele, Jr., Fiduciary Duty, Tort and Contract: A Primer on
the Legal Malpractice Puzzle, 47 SMU L. Rev. 235 (1994)); see
also Dunn v. McKay, Burton, McMurray & Thurman, 584 P.2d 894, 904
(Utah 1978) (Maughan, J., dissenting) (“An action for legal
malpractice may be framed conceptually as either a tort or a
breach of contract.”). No matter which of the three causes of
action (tort, breach of contract, or breach of fiduciary duty) a
client brings, the main purpose of legal malpractice actions is
“to guard against and to remedy exploitation of the power lawyers
possess over their clients’ lives and property.” Kilpatrick, 909
P.2d at 1289 (citing Anderson & Steele, supra, at 236).
¶22 This appeal includes all three theories of legal
malpractice. We note in passing the elements of each. In a
legal malpractice action based on negligence, a plaintiff must
prove “(i) an attorney-client relationship; (ii) a duty of the
attorney to the client arising from their relationship; (iii) a
breach of that duty; (iv) a causal connection between the breach
of duty and the resulting injury to the client; and (v) actual
damages.” Harline v. Barker, 912 P.2d 433, 439 (Utah 1996)); see
also 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice
§ 8.13 (2008 ed.) [hereinafter Legal Malpractice].
¶23 We have established the elements required for a legal
malpractice claim based on a breach of fiduciary duty: “(1) an
attorney-client relationship; (2) breach of the attorney’s
fiduciary duty to the client; (3) causation, both actual and
proximate; and (4) damages suffered by the client.” Kilpatrick,
909 P.2d at 1290; see also Restatement (Third) of the Law
Governing Lawyers, § 49 (2000). Clearly, the elements required
to prove both theories of legal malpractice are substantially the
same.7

7 (...continued)
or for negligence without any difference in result. For example,
the duty of care enforced in a negligence action is also a
fiduciary duty . . . . Most rules applicable to negligence
actions also apply to actions for breach of fiduciary duty.”
Restatement (Third) of the Law Governing Lawyers § 49 cmt. c
(2000).
No. 20061044 10
¶24 An action for breach of contract, however, is very
different from the other two legal malpractice theories discussed
above. A legal malpractice claim based on contract deals
directly with the attorney’s breach of a specified term in a
contract between the attorney and the client, within the scope of
the attorney-client relationship, that causes the client to
suffer damages. In other words, “[r]ules of contract, not rules
of legal malpractice, govern an action for breach of a promise.”
Legal Malpractice § 8.6. In Bennett v. Jones, Waldo, Holbrook &
McDonough, we recognized that to state a legal malpractice action
based on breach of contract, a plaintiff must show “(1) a valid
and enforceable contract; (2) performance by the plaintiff;
(3) breach of the express promise by the defendant; and
(4) damages to the plaintiff resulting from the breach.” 2003 UT
9, ¶ 32; see also Legal Malpractice § 8.6.
A. Causation in the Legal Malpractice Context
¶25 Although each of the theories discussed above deals
with a different type of harm, “the same standard of causation
applies whether the alleged wrong is a negligent act, a fiduciary
breach, or even a contractual breach.” Kilpatrick, 909 P.2d at
1291. It is causation that is at issue here.
¶26 We have long recognized that the standard for causation
in a legal malpractice action requires “[t]he client . . . [to]
show that if the attorney had adhered to the ordinary standards
of professional competence and had done the act he failed to do
or not done the act complained about, the client would have
benefited.” Harline v. Barker, 854 P.2d 595, 600 (Utah Ct. App.
1993). In Kilpatrick, the court of appeals required that in
order to meet the standard for causation for a breach of
fiduciary duty in a legal malpractice action, “clients must show
that if the attorney had adhered to the ordinary standards of
professional conduct . . . the client would have benefited.” 909
P.2d at 1291 (emphasis omitted). Similarly in a breach of
contract action, the non-breaching party is required to show that
the breach proximately caused the damages sought. Eleopulos v.
McFarland & Hullinger, LLC, 2006 UT App 352, ¶ 13, 145 P.3d 1157.
Generally, an award of damages in a breach of contract case

11 No. 20061044
attempts to “place the aggrieved party in the same economic
position the party would have been in if the contract was not
breached.” Id. ¶ 10 (citing Mahmood v. Ross (In re Estate of
Ross), 1999 UT 104, ¶ 19, 990 P.2d 933). This burden of
establishing causation remains the same for all three legal
malpractice theories. Under each theory, the client is required
to show that absent the conduct complained of--whether it is a
breach of an express promise or fiduciary duty by the attorney or
non-adherence to proper professional conduct--the client would
have benefitted. Thus, in this case, Slusher must show that
absent Appellees’ conduct, he would have received more than he
ultimately received from the Campbell litigation.
B. There Are No Genuine Issues of Material Fact
As To the Causation Element
¶27 Slusher argues that the trial court erred in granting
Appellees’ summary judgment motion on the issue of legal
malpractice because there were material facts still in dispute.
We cannot identify any such disputed facts, and Slusher has
failed to call any to our attention.
¶28 In Kilpatrick, the court of appeals held that where
plaintiffs’ case presented “genuine issues of fact surrounding
the element of causation, the trial court improperly granted
summary judgment” to defendants. 909 P.2d at 1293. In that
case, plaintiffs brought an action against defendant law firm for
simultaneously representing plaintiffs and several other clients
with conflicting interests, despite plaintiffs’ objections. Id.
at 1286-88. During their representation, plaintiffs were advised
by defendant to accept a financing offer from one of defendant’s
clients whose interests conflicted with plaintiff, rather than a
similar offer made by a non-client company. Id. In addition,
the defendant simultaneously represented plaintiffs and two other
clients in business transactions between plaintiffs and the two
clients, including a joint venture. Id. During these
simultaneous representations, the defendant prepared promissory
notes and other documents containing terms disfavoring
plaintiffs. Id. Plaintiffs brought their claim when they
realized that under the documents prepared by defendant,
plaintiffs were obligated to pay off debts incurred by the joint
venture even after its dissolution. Id. at 1289. The court in
Kilpatrick held that the trial court erred in weighing evidence
presented by the parties, finding that “[a]lthough the trial
court explicitly recognized disputed facts in its oral ruling, it
nonetheless pressed forward, judging the credibility of and
weighing the evidence” when it should have only concerned itself
with whether genuine issues of fact existed. Id. at 1292.

No. 20061044 12
¶29 In the case before us, the trial court did not identify
nor did it weigh any facts in dispute. Slusher argues that there
are material issues of fact as to whether Appellees’ breach
caused Slusher to miss out on a settlement opportunity, but
neglects to point out these issues. The relevant facts as to the
causation element are as follows: State Farm mailed the
Settlement Letter to Appellees. The Settlement Letter stated
that as a condition to the settlement offer of $150,000,000,
(a) the Utah Supreme Court must vacate its October Opinion;
(b) the Campbells must join State Farm in filing a notice with
the Utah Supreme Court, pursuant to Utah Rules of Appellate
Procedure 37, stating that the matter had been settled and is now
moot; and (c) the Campbells must join State Farm in requesting
that the Utah Supreme Court vacate its October Opinion.
Humpherys consulted with all the clients regarding the letter on
November 16, 2001. Humpherys informed the Clients of the amount
and the conditions. The settlement offer was rejected by the
Ospitals and the Campbells, but Slusher did not approve an
outright rejection of the offer. Slusher was informed about the
settlement offer and also about the other clients’ rejection of
the offer. The entire decision-making process consisted of
Humpherys contacting the clients individually via telephone to
discuss the settlement; these discussions took only two hours.
There was an agreement requiring a unanimous consent to settle in
place at the time the offer was made and discussed. State Farm
filed a Petition for Rehearing with this court on November 19,
2001, which was denied. Finally, State Farm filed a Petition for
Certiorari in the U.S. Supreme Court, which was granted and
ultimately resulted in a reduced award of $9,018,780.75.
¶30 These facts are not in dispute. Slusher has raised
questions as to the unanimity agreement, specifically stating
that “the ‘unanimous-consent’ agreement [Humpherys] was referring
to was purportedly entered into orally by the Clients in
September 1995 . . . [and] was formally memorialized . . . three
weeks after State Farm’s Settlement Letter was sent to and
rejected by [Humpherys].” It is not clear if Slusher is implying
that there was no “unanimous-consent” agreement in place prior to
the memorialization of the oral agreement in December 2001. If
that is his contention, there is simply no evidence supporting
it. Both the Ospitals and the Campbells in their depositions
agreed that there was such an agreement; Slusher never denied
that there was such an agreement; the January 2001 letter from
Humpherys to the Clients specifically referenced the prior
agreement to settle unanimously; the Clients had already
unanimously agreed to reject a $10,000,000 settlement; and the
Clients and the attorneys signed the December 2001 Agreement,
which reiterated the unanimous agreement provision.

13 No. 20061044
¶31 Slusher argues that there are disputed facts as to the
existence of an attorney-client relationship between him and
Humpherys, whether there was a breach of duty by Appellees, and
whether Slusher suffered any damages. None of these asserted
factual disputes, however, go to causation. In addition, Slusher
argues that there are material issues as to whether Appellees’
alleged breach--including Appellees’ alleged failure to fully
advise the Clients, haste in rejecting the offer, and failure to
adequately explore the vacatur condition--“caused Slusher to miss
out on a settlement opportunity.” Once again, Slusher neglects
to point out the factual disputes to which he refers.
¶32 Slusher further argues that a jury was required to
determine the causation question. We disagree. This argument is
based mainly on the court of appeals’ statement in Kilpatrick
that “[c]ausation is a highly fact-sensitive element of any cause
of action.” 909 P.2d at 1292. We agree that causation is highly
fact-sensitive, but trial courts must still apply Utah’s Rules of
Civil Procedure in ruling on summary judgment motions. Slusher
also directs us to the court of appeals’ holding in Kilpatrick
that because the evidence proffered by plaintiffs showed that
they would have likely made different choices which could have
benefitted them if the defendant had not breached its duty of
loyalty, the evidence created factual issues as to the causation
element. Id. at 1292. Slusher argues that according to
Kilpatrick, “likelihood” is all that is necessary to get past
summary judgment, and that given State Farm’s and his desire to
settle, it was very likely that a settlement would have taken
place. We interpret Kilpatrick differently. Here, Appellees’
and Slusher’s actions are not in dispute; the parties agree on
what happened--Slusher wanted to settle and the Ospitals and the
Campbells refused. Their agreement required unanimity for a
settlement, and nothing the Appellees did or failed to do would
have affected the outcome. Thus Slusher’s bare assertion that
settlement was “likely” is insufficient to get past summary
judgment.
C. Appellees Are Entitled to Judgment as a Matter of Law
¶33 There are two ways in which Slusher could have received
more money than he did: First, through a unanimous acceptance by
the Clients of the offer contained in the Settlement Letter or
any subsequent offers; or second, through an individual
settlement with State Farm. We agree with the trial court that
any damages suffered by Slusher were not as a result of
Appellees’ actions or omissions.

8 It is difficult to see any reason for State Farm to pay
the $150,000,000 it offered without the vacatur of what was for
it a very negative opinion by a state supreme court.
No. 20061044 14
1. Slusher’s Capacity to Settle with State Farm as a Member of
the Clients’ Group
¶34 Prior to the receipt of the Settlement Letter, the
Clients had a binding agreement requiring unanimity for the
acceptance of any settlement offer. Upon the receipt of the
Settlement Letter, Humpherys contacted the Clients and informed
them of the offer and conditions contained in the letter. The
Ospitals and the Campbells both rejected the offer after
Humpherys’ explanation, but Slusher argues that their decision
was uninformed because the effects of a reversal, the possibility
of a reversal, and the vacatur condition were not fully explained
and explored by Humpherys. Slusher’s argument fails because both
the Ospitals and the Campbells in their depositions were adamant
that they rejected State Farm’s offer because they were more
concerned about preserving the October Opinion than they were
about the money. Inez in her affidavit stated that, “[i]t was as
if State Farm was trying to pay us to keep our mouths shut and to
hide what we finally uncovered.” When asked if she would have
accepted the offer if Slusher had spoken with her and explained
to her how much the money meant to him, or if Barrett had advised
her that there was a fifty-percent chance the U.S. Supreme Court
would grant State Farm’s Petition for Certiorari, Inez responded
that she would not have changed her mind. The Ospitals in their
affidavits stated, “We did not feel we could accept the condition
that the judgment would have to be vacated as part of the
settlement.” The Ospitals made their decision based on the
principle that a vacatur would be unfair. Besides, “they already
had a judgment for $145 million” payable without the requirement
of a vacatur. The Ospitals and the Campbells rejected the
$150,000,000 settlement offer not because they were a hundred
percent sure that they were guaranteed the awards granted by the
October Opinion, but because they were opposed to the idea of
vacating the October Opinion’s substance.
¶35 Slusher further argues that in addition to their
failure to fully explore the Settlement Letter terms with the
Clients, Appellees failed to fully explore the vacatur condition
or to negotiate the settlement terms with State Farm. Once
again, Slusher’s argument does not pass muster. The Settlement
Letter was clear on its terms and did not contemplate
negotiation, especially regarding the vacatur.8 Moreover,
Appellees had no control over future negotiations with State Farm
because, as disclosed by Zimmerman in his deposition, State Farm
would not have negotiated any further unless the October Opinion

15 No. 20061044
was vacated. There was no possibility of negotiation; State Farm
was adamant that the opinion be vacated, and the Campbells,
without whom a vacatur request would be impossible, were equally
adamant that there would be no vacatur. Therefore, we find that
Appellees’ conduct was not the reason why the Settlement Letter
offer was rejected nor was it the reason why no subsequent
negotiations took place.
2. Slusher’s Capacity to Settle or Negotiate Separately
¶36 Slusher argues that Appellees’ binding of the Clients
to a unanimous consent agreement was improper and deprived the
Clients of the opportunity to settle individually. Slusher
further contends that “but for [Appellees’] breach of [their]
duty of loyalty in refusing to follow Slusher’s desires . . . and
[Appellees’] representation of other clients with adverse and
conflicting interests . . . there is a reasonable probability
that Slusher could have settled his interest in the litigation.”
Also, according to Slusher, Appellees’ representation of clients
with conflicting and adverse interests is a violation of the Utah
Rules of Professional Conduct, and “is the actual and proximate
cause of Slusher’s lost settlement opportunity.”
¶37 A violation of the Rules of Professional Conduct does
not itself give rise to causes of action against a lawyer because
the rules were not created as a basis for civil liability. Utah
Rules of Prof’l Conduct, Scope. The existence of a conflict of
interest only shows that Appellees breached an applicable
standard of conduct, and does not speak to whether such breach
proximately caused damages, and therefore Appellees’ alleged
representation of clients with conflicting interests is of no
moment. The issue of whether appellants were representing
clients with adverse and conflicting interests is irrelevant to
our decision in this case, and thus we decline to speak to it.
¶38 Contrary to his position here, Slusher could not have
settled individually with State Farm because the condition for
any settlement was a vacatur of the October Opinion. As noted in
the previous section, the only clients able to join in requesting
a vacatur, the Campbells, were strongly against a vacatur. We
note that Slusher was given the option to settle individually
with State Farm and to assign his rights to a litigation
financing company on at least one occasion prior to the receipt
of the Settlement Letter. Humpherys informed the Clients that
they had the option of settling with State Farm or selling their
rights in the litigation to a litigation financing company in the
January Letter. Humpherys also requested that the Clients inform
him of their settlement desires in both the January and December
Letters. Despite being given these choices, Slusher did not opt

No. 20061044 16
to either attempt to settle individually with State Farm or
through a litigation financing company, and if he ever desired to
settle individually, he neglected to inform Appellees of such
desires. Furthermore, the question of what a litigation
financing company would have paid for Slusher’s interests is one
of speculation, and causation cannot be shown through conjecture
or speculation. Dunn v. McKay, Burton, McMurray & Thurman, 584
P.2d 894, 896 (Utah 1978).
¶39 The parties touched upon the issue of whether this
court would have vacated the October Opinion in their briefs, but
we need not address that question because we reject Slusher’s
arguments on causation. We conclude that absent Appellees’
actions, Slusher would not have benefitted and thus affirm the
trial court’s summary judgment ruling.
II. ATTORNEY FEE ALLOCATION
¶40 The only issue before us regarding the attorney fee
agreement is whether the trial court erred in concluding that the
value of Barrett’s contribution to the legal work in Campbell
amounted to $25,000. In cases of equity, we defer to a trial
court’s “conclusion that it had a sufficient factual basis for
reaching an equitable distribution.” Parduhn v. Bennett, 2005 UT
22, ¶ 39, 112 P.3d 495.
¶41 Barrett, the only appellant on this issue, does not
appeal the jury’s special verdict; rather, he appeals the trial
court’s equitable distribution of the attorney fees. On appeal,
Barrett argues that the trial court erred by failing to show that
its judgment flowed logically from the evidence as prescribed in
Parduhn and by employing an incorrect measure in fashioning a
remedy. He also argues that the trial court should have relied
on the 1990 Agreement in reaching an equitable distribution of
the attorney fees.
¶42 Barrett’s first argument is premised upon our language
in Parduhn, which reads as follows:
[F]indings of fact “must show that the
court’s judgment or decree flows logically
from, and is supported by, the evidence. The
findings should be sufficiently detailed and
include enough subsidiary facts to disclose
the steps by which the ultimate conclusion on
each factual issue was reached.”
Id. ¶ 24 (internal quotation marks omitted).

17 No. 20061044
¶43 In reaching its decision, the trial court found that:
(1) while Appellees attended and actively participated in all of
the nearly 100 depositions taken in the Campbell case, Barrett
attended only two of these depositions, and even then, did not
participate; (2) Barrett prepared one pleading, consisting of
five pages, out of the hundreds of pages of pleadings filed in
the Campbell case; (3) Barrett did not appear nor did he
participate as counsel in any of the hearings or at either of the
bifurcated trials which lasted ten weeks, and his appearance as a
spectator did not advance the Campbell case in any material way;
(4) Barrett never advanced any funds to cover the litigation
expenses which the Campbells were unable to pay and refused to do
so despite Appellees’ requests that he share equitably in the
costs; (5) Appellees advanced all of the costs totaling more than
$500,000 and bore the risk of losing these advances if the
plaintiffs lost; (6) Appellees spent a large amount of time doing
the work Barrett failed to do; (7) Barrett’s testimony and other
evidence at trial showed that Barrett did not have an
understanding of the fundamental issues involved in Campbell,
“such as the distinction between first and third-party bad faith
claims, the names of key trial witnesses or the content of
important exhibits and pleadings”; (8)Barrett played no role in
the four appeals that occurred after the successful litigation of
Campbell; (9) Barrett’s client, and the Ospitals were dismissed
as plaintiffs from the Campbell case in 1987 due to lack of
standing to assert bad faith claims against State Farm, and this
ruling was never challenged by any of the parties; (10) Barrett’s
client ultimately recovered almost $3,000,000 in addition to his
initial judgment, plus interest, against Campbell in the 1984
litigation; (11) Barrett’s client had no rights in Campbell
except his contractual rights to share in the proceeds from the
Campbells’ claims against State Farm; (12) As a party to the
agreements and a recipient of a third of the Campbell recovery,
Barrett’s client was already obligated to cooperate with the
Campbells and to pay Appellees their share of the contingency
fee, regardless of whether Barrett encouraged him to or not;
(13) Barrett was not entitled to a finder’s fee or any other type
of fee for encouraging Slusher’s cooperation within the group,
but was merely entitled to an equitable fee for the time he spent
working on Campbell.
¶44 Contrary to Barrett’s assertion, we conclude that the
trial court’s findings were sufficiently detailed to support its
holding. Because the trial court’s decision was an equitable
one, it was not mandated to show that it adhered to specific
factors or that it used a formulaic test in reaching its
decision. Hughes v. Cafferty, 2004 UT 22, ¶ 24, 89 P.3d 148.
“The court of equity has the power of devising its remedy and
shaping it so as to fit the changing circumstances of every case

No. 20061044 18
and the complex relations of all the parties.” Id. ¶ 26 (quoting
1 Spencer W. Symons, Pomeroy’s Equity Jurisprudence § 109 (5th
ed. 1941)). In this case, the trial court devised a remedy based
on its determination that because Barrett was not entitled to any
fees under the agreement, he was only entitled to an equitable
fee for the amount of work he actually performed in the case. In
its findings, the trial court gave a detailed description of
Barrett’s involvement in the Campbell case, and utilizing those
findings, it determined that Barrett’s contribution amounted to
$25,000.
¶45 Barrett challenges only one finding of fact. He points
out that the trial court inaccurately stated that Appellees alone
bore the risk of losing advanced costs if the plaintiffs lost the
case. Nevertheless, even if this isolated finding of fact is
inaccurate, we have long held that a reversal of a trial court’s
findings will occur only where the evidence clearly preponderates
against the findings of the trial court. Jensen v. Brown, 639
P.2d 150, 152 (Utah 1981); Crimmins v. Simonds, 636 P.2d 478, 479
(Utah 1981); Utah County v. Baxter, 635 P.2d 61, 64 (Utah 1981);
Peterson v. Carter, 579 P.2d 329, 330 (Utah 1978); Pagano v.
Walker, 539 P.2d 452, 454 (Utah 1975); Mollerup v. Daynes-Beebe
Music Co., 24 P.2d 306, 309 (Utah 1933). Because this finding
relates to only one, relatively minor, factor in the court’s
assessment process, we conclude it does not change the balance in
the preponderance of the evidence.
¶46 Barrett further contends that the trial court should
have relied on the 1990 Agreement in reaching its conclusion
because that agreement showed the parties’ intended method of
equitable distribution. Barrett argues that the trial court
should have focused on that agreement because under Parduhn, a
court may consider a contract, whether valid or invalid, as
evidence of the intent behind the agreement. 2005 UT 22, ¶ 34;
see also Bennett Leasing Co. v. Ellison, 387 P.2d 246, 247-48
(Utah 1963). The trial court’s decision not to rely on the 1990
Agreement in fashioning an equitable remedy in this case was a
valid exercise of its broad discretion. Hughes, 2004 UT 22,
¶ 24. Prior to submitting the special verdict to the jury, the
parties agreed to allow the trial court to determine the amount
of fees Barrett was entitled to if the jury found that the
contract was unenforceable. The trial court was not obligated to
look to that agreement because pursuant to the jury verdict,
Barrett was not entitled to anything under it; and there was
ample evidence of changed circumstances affecting the intent of
the parties. Our language in Parduhn and in Bennett Leasing Co.
merely clarified that a court in determining equitable remedies
may, as one of its many choices, look to such agreements or

19 No. 20061044
contracts to discern intent. Parduhn, 2005 UT 22, ¶ 34; Bennett
Leasing Co., 387 P.2d at 247-48. It is not obligated to do so.
¶47 Furthermore, Utah’s Rules of Professional Conduct
specify that “division of fees between lawyers who are not in the
same firm may be made only if, the division is in proportion to
the services performed by each lawyer or each lawyer assumes
joint responsibility for the representation.” Utah Rules of
Prof’l Conduct R. 1.5(e)(1) (emphasis added). Therefore, in the
absence of a joint representation agreement, a court may
generally infer that the attorneys intended, pursuant to rule
1.5(e)(1), to divide the fees in proportion to the services
performed by each lawyer. Id. Although Barrett may have
intended to be paid for merely introducing Slusher to the group
and signing his name on the attorney agreements, Appellees must
have intended, as required by rule 1.5(d)(1), that he actually
perform services in proportion to his share of fees.
¶48 Therefore, we affirm the trial court’s equitable
distribution of attorney fees. It did not abuse its discretion
and reached “a result that serves equity given the overall facts
and circumstances of the individual case.” Hughes, 2004 UT 22,
¶ 24.
CONCLUSION
¶49 We affirm the trial court’s grant of summary judgment
to Appellees on the legal malpractice claims because there are no
issues of fact as to the causation element and because Slusher
has not shown that Appellees’ actions or omissions caused him to
suffer any damages. Slusher could not settle with the Client
group absent a unanimous agreement by the Clients; he could not
settle individually with State Farm absent a request from the
Campbells that this court vacate the October Opinion and the
occurrence of an actual vacatur; the likelihood of Slusher
benefitting from an assignment of his interests to a litigation
financing company is entirely speculative; and despite being
given the opportunity to do so, Slusher never opted to settle
individually.
¶50 On the issue of the attorney fee allocation, we hold
that the trial court did not abuse its discretion in effectuating
a division of fees in proportion to Barrett’s services performed
in the Campbell case and therefore affirm the court’s award of
$25,000.
---

No. 20061044 20
¶51 Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.