Thomas Rosenbaum v. Beau White , 692 F.3d 593 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3224
T HOMAS R OSENBAUM, et al.,
Plaintiffs-Appellants,
v.
B EAU J. W HITE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 06 CV 0352—Theresa L. Springmann, Judge.
A RGUED JUNE 7, 2012—D ECIDED A UGUST 16, 2012
Before M ANION, K ANNE, and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. In 2005, two attorneys,
Beau Jack White and James Beaman, assisted a se-
curities broker-turned-real estate investor named
Chad Seybold in developing an investment plan to buy,
rehabilitate, and then sell, or refinance and rent, various
residential and commercial properties in Marion, Indi-
ana. That plan involved the creation of two business
entities—one of which would be partially owned by a
2 No. 11-3224
group of private investors. The attorneys were hired to
draw up the necessary formation documents for those
two companies. Seybold then solicited a group of
investors who became part owners of one of the compa-
nies, together contributing more than $1 million to the
investment plan. Soon, however, Seybold informed the
investors that the investment plan had failed. The
investors filed a lawsuit against Seybold, the at-
torneys, and various organizations that they blamed
for their losses. The defendant-attorneys—now the only
defendants remaining in the case—filed a motion for
summary judgment on all of the claims levied against
them; the plaintiff-investors opposed that motion and
filed a counter-motion for summary judgment. The
district court granted summary judgment in favor of
the defendant-attorneys on all applicable claims. The
plaintiffs appeal, and we now affirm.
I.
Chad Seybold ran several businesses in Indiana and
Michigan. One of those businesses, Seytron, LLC,
owned thirteen residential and commercial properties
in Marion, Indiana, that it had rehabilitated and then
rented out. With designs on purchasing more prop-
erties and garnering funds to maintain Seytron’s existing
properties, Seybold sought out investors who would
contribute additional capital. To that end, in March 2005,
Seybold contacted Beau Jack White, a member of the
law firm of Johnson, Beaman, Bratch, Beal and White,
LLP, to help him form two new business entities. White
No. 11-3224 3
was not experienced in corporate law so he referred
Seybold’s request to James Beaman, a senior member of
the firm, who was more versed in that area of the law.
On April 1, 2005, Beaman met with Seybold to
discuss forming the two new business entities which
were named Seytron Property Holding, LLC, and
Seytron Investors No. 1, LLC. According to Seybold’s
plan, Seytron Property Holding, LLC, whose members
would be Seybold and two other individuals, would
hold a 51% stake in Seytron Investors No. 1, LLC. The
remaining 49% ownership interest in Seytron Investors
No. 1, LLC would come from investments by individuals
or financial organizations that would be pitched through
private offerings. Additionally, the investors would
have to provide personal guarantees for Seytron Investors
No. 1, LLC to borrow up to $450,000 from a lending
institution.
The investors’ personal investments, together with the
loan secured by the investors’ personal guarantees,
would function as a line of credit for the aforemen-
tioned Seytron, LLC to maintain its existing properties
and also to purchase new residential and commercial
properties, rehabilitate those properties, and then either
sell or remortgage and rent the properties. (Seybold
hoped that the investment plan could be structured so
that another one of his business entities, Seycad Con-
struction, LLC, would be the exclusive contractor that
would work on the properties.) Any profit above the
initial investment would be distributed to Seytron,
LLC, and members of Seytron Investors No. 1, LLC. After
4 No. 11-3224
briefly discussing these particulars and a few ancillary
issues with Seybold, Beaman conducted some pre-
liminary research into Indiana securities laws in prepara-
tion for drafting formation documents.
Seybold, Beaman, and White met at the law firm office
in Marion, Indiana, on the morning of April 9, 2005.
Seybold brought a stockbroker named Victor Whang to
the meeting. Whang had taken a real estate investment
class and was interested in investing in Seybold’s plan
on behalf of two people—plaintiff Veying Tone, who
was one of Whang’s clients, and Whang’s mother,
plaintiff Royce Whang. Whang testified that Seybold
was proud of the fact that he had hired a law firm to
set up the two business entities and therefore wanted
Whang to meet the attorneys who were drawing up
the necessary documents to protect potential investors.
Seybold was evidently courting Whang, who had ties to
several potential investors. The meeting at the law firm
was brief, consisting of introductions and a confirmation
to Whang that Beaman and White were the attorneys
who “were drawing up the paperwork and representing
the group of investors or whoever was going to be in-
vesting in this plan.” Seybold, Whang, and White then
left the law firm office to go to an investment seminar
that Seybold had scheduled for that same day. White
testified that he attended the seminar at Seybold’s behest
to explain the concept of limited individual liability
afforded by the LLC structure.
The investment seminar was Seybold’s first formal
invitation to investors to purchase a stake in Seytron
No. 11-3224 5
Investors No. 1, LLC. Plaintiffs Rick and Elizabeth
Sandusky and Dr. Thomas Rosenbaum (along with
Dr. Rosenbaum’s wife, who is not a plaintiff) had
attended the same real estate investment class as
Whang. They all attended Seybold’s seminar as
potential investors. Whang, who, as we mentioned
earlier, attended on behalf of his mother and a client,
videotaped the seminar so that he could present the
plan to other potential investors. At the outset of the
seminar, Seybold introduced several participants in
the investment plan, including his brother, Wayne, who
was the mayor of Marion; Lupe Cadena, who was
Seybold’s partner in Seycad Construction, LLC; an in-
surance agent; Seybold’s father, John, who was an ex-
perienced real estate adjuster; and White, whom
Seybold introduced as “the attorney who’s helping us
structure the company.”
Seybold talked at length about his investment
plan, highlighting the numerous protections that the
investors would have. After talking for more than an
hour, Seybold asked White whether he would like “to
add anything on the creation of the company.” White
began his presentation by addressing a concern raised
by a prospective investor about potential conflicts
of interest with Seybold’s other companies. White ex-
plained that those issues could be addressed in the oper-
ating agreement. In addition to other structural protec-
tions already discussed by Seybold, White noted that
he and the law firm were looking into how to avoid
certain securities-laws issues that might arise from
the creation of the company. More generally, White
6 No. 11-3224
explained that, by structuring the investment venture as
an LLC, the investors would be insulated from per-
sonal liability in the event a suit was filed against
the company. In other words, as White put it, the only
thing at risk was the investors’ investment in the LLC.
Finally, Seybold added the following comments:
I think that the other important thing to note here
is—that you’ve got to remember is—that [the attor-
neys] don’t represent me. They represent Seytron
Property Holdings, okay? That means that they repre-
sent you as well. So they’re not only looking out for
my best interest as well and my best interest also as
a partner in this group. So it’s not like—I don’t
want anybody to get the impression that they’re
setting this up to where it benefits me and that you
guys are going to be left hanging in the breeze. The
total discussion that we’ve had is that I’m part of an
owner in Seytron Property Holdings just like you
and your interest needs to be protected first to
make sure that your dollars are safe and then
second that we’re protected as a group both in our
personal lives as well as within the company. So,
[the attorneys] are working for you just like they
are working for me.
White stood next to Seybold as Seybold made these
comments and made no attempt to clarify or correct him.
After the seminar, Dr. Rosenbaum introduced himself
to White. According to Dr. Rosenbaum, White gave him
a business card, told him to call if he had any questions,
and indicated to him that White would be representing
No. 11-3224 7
“the people potentially who would invest in the
Seytron Investors No. 1, LLC.” Mrs. Sandusky also
spoke to White briefly after the seminar. She obtained
his business card and came away with the impression
that White “was our attorney and was there to protect
our interests.” Mr. Sandusky did not speak to White.
Later in the day, the prospective investors went from
there on a tour of Marion with Seybold and his brother
Wayne, the mayor.
In the weeks that followed, Beaman drafted the
articles of organization for both Seytron Property
Holdings, LLC, and Seytron Investors No. 1, LLC.
Beaman executed the articles on April 27, 2005, and filed
them with the State of Indiana. Beaman then turned
his attention to the operating agreements for both com-
panies, which he revised several times after reviewing
the agreements with Seybold during May 2005. Notably,
on its final page, the completed operating agreement
for Seytron Investors No. 1, LLC contained signature
lines for the members (i.e., those prospective investors
who decided to invest) and the following bolded dis-
claimer: “WE CERTIFY THAT WE HAVE READ THE
ABOVE OPERATING AGREEMENT IN DETAIL AND
HAVE HAD THE OPPORTUNITY TO REVIEW
SAID OPERATING AGREEMENT WITH OUR
LEGAL COUNSEL AND/OR ACCOUNTANT.” 1 Beaman
1
Although the operating agreement provided in the record
does not contain any actual signatures, the plaintiffs do
(continued...)
8 No. 11-3224
also worked on a subscription and loan agreement in
May 2005, as well as a promissory note in June 2005.
There is no record of White, Beaman, or the law firm
performing any work for Seybold or the two companies
after June.
Over the course of the next several months, and even
into the Spring of 2006, Seybold held at least two
more seminars and conducted other meetings for pros-
pective investors. The presentations were identical to
the first seminar, though neither White nor anyone else
from the law firm was in attendance. Like those who
had attended the April 9, 2005, seminar, most of these
prospective investors were either Whang’s clients or
people who had attended the aforementioned real estate
investment class with him.
There was, however, another investor, Ray Leggett,
who was outside of Whang’s sphere of influence. Leggett
met Seybold while working as a broker in Michigan.
After Seybold pitched his investment plan to Leggett,
Leggett and ten other individuals formed plaintiff
RFL Financial, LLC, for the purpose of investing with
Seybold. Soon thereafter, Leggett began making trips
to Marion to research Seybold’s investment plan. On
one of those trips, Leggett accompanied Seybold to the
law firm where Leggett briefly met White. Leggett later
described the exchange as follows:
1
(...continued)
not dispute that this agreement is indeed the one that
they signed.
No. 11-3224 9
I believe what I said to the attorney was something
like, so you’re the famous lawyer that I’ve heard
is working for us. I shook his hand. He said, yes,
hello. [Seybold] introduced us. I was also told by
[Seybold] himself in front of [White] that, yes, this
is the law firm that is working on our behalf for you,
for the investors.
Leggett did not have any more contact with White,
Beaman, or any other attorney at the law firm. Notably,
aside from Whang, Leggett, and the individuals
who attended the April 9, 2005, seminar, none of the
prospective investors met White, Beaman, or any other
law firm representative. Instead, they all relied on repre-
sentations by Seybold, Whang, and Leggett that the
attorneys were looking out for the investors’ interests.2
Eventually, the plaintiffs went from prospective in-
vestors to part owners of Seytron Investors No. 1, LLC.
As we mentioned above, this entailed purchasing a
stake in the company as well as signing as a security for
a loan. The majority of these investments took place no
earlier than August 2005, and ranged from $10,000 to
$220,000. In total, the plaintiffs invested more than
$1 million in Seybold’s plan. Then, in September or
October 2006, Seybold called a meeting with all of the
2
As noted above, most of the prospective investors’ connec-
tions to Seybold came through Whang. One exception,
however, is Sean Smolski, who later became an investor and
is a plaintiff in this case, and was introduced to Seybold
by Leggett.
10 No. 11-3224
investors. Whang attended on behalf of his mother
and Veying Tone; Leggett attended on behalf of RFL
Financial; and the Sanduskys, Gary and Joni Kasaczun,
William Method, Delen Tennyson, Ron Hood, and
Robert Sexton also attended. At the meeting, Seybold
informed the investors that their investments were gone,
that he was filing for bankruptcy, and that the investors
were free to try to salvage the investment plan if they
so desired. Seybold explained that the real estate
market had taken a downturn, causing property values
to fall and making refinancing impossible. Moreover, the
rehabilitation costs had increased and suppliers had
stopped allowing Seybold to order materials on credit.
In short, Seybold’s plan had failed. Sometime in the
Fall of 2006, Dr. Rosenbaum, Whang, and Leggett all
attempted to contact White and the law firm; none of
them received a response. The investors therefore
decided to hire independent legal counsel to represent
them.
On October 26, 2006, believing that Seybold had
bilked them out of their investments, the investors filed
suit in the Northern District of Indiana against Seybold
and a number of his business entities and associates.
The investor-plaintiffs amended their complaint four
times, eventually adding Seytron Property Holdings,
LLC, and Seytron Investors No. 1, LLC as plaintiffs and
more than fifteen individuals and entities as defen-
dants—including White, Beaman, and the law firm. The
plaintiffs alleged a host of federal-law claims, along
with both Indiana and Michigan state-law claims. Eventu-
ally, by June 2010, the case had been whittled down so
No. 11-3224 11
that the attorneys were the only defendants remaining
in the case.
White, Beaman, and the law firm filed a motion for
summary judgment on all of the claims that the plain-
tiffs filed against them: state and federal RICO
violations, conversion, federal and state securities fraud,
common-law fraud (both actual and constructive), civil
conspiracy, and legal malpractice. The plaintiffs
opposed the defendants’ summary judgment motion
and filed their own counter-motion. After noting that
the plaintiffs had waived their RICO and conversion
claims, the district court granted the defendants’
motion for summary judgment on the rest of the chal-
lenged claims, and the plaintiffs appealed.
II.
We review de novo the district court’s granting of
summary judgment. Musch v. Domtar Indus., Inc., 587
F.3d 857, 859 (7th Cir. 2009). In doing so, we will
construe all facts and draw all reasonable inferences in
a light most favorable to the nonmoving party. Id. When
considering cross-motions, “ ‘our review of the record
requires that we construe all inferences in favor of the
party against whom the motion under consideration is
made.’ ” Allen v. City of Chicago, 351 F.3d 306, 311 (7th Cir.
2003) (quoting O’Regan v. Arbitration Forums, Inc., 246
F.3d 975, 983 (7th Cir. 2001)). “The court shall grant
summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the
12 No. 11-3224
movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).
On appeal, the plaintiffs contend that the district court
erred in granting summary judgment on the following
claims: (1) legal malpractice; (2) violations of § 10(b) of
the Securities Act of 1934 and Rule 10b-5, and of Indiana
securities laws (collectively referred to as the “securities-
fraud claim”); (3) actual fraud; (4) constructive fraud;
and (5) civil conspiracy. The main thrust of the plaintiffs’
case rests on whether the defendants owed them a legal
duty. The district court held that the defendants did not
owe the plaintiffs a duty—a holding that disposed of not
only the plaintiffs’ legal-malpractice claim, but also
their constructive-fraud and securities-fraud claims
(although the district court cited alternate grounds for
dismissing the latter two claims as well). We will
therefore begin by addressing whether the plaintiffs
have established the existence of a duty, and then we
will move on to discuss the two remaining claims (actual
fraud and civil conspiracy) on which the existence of
a legal duty has no bearing.
A. Legal Duty (Legal Malpractice, Constructive Fraud,
and Securities Fraud)
Three of the plaintiffs’ claims hinge on whether the
defendants owed them a legal duty. This determination
is a question of law within the exclusive province of the
courts. Campbell v. Eckman/Freeman & Assocs., 670 N.E.2d
925, 931 (Ind. App. Ct. 1996) (citation omitted). Two of
the relevant claims, legal malpractice and constructive
No. 11-3224 13
fraud, are Indiana state-law claims. We will address
those claims first before moving to the plaintiffs’ third
claim—securities fraud.3
1. Legal Malpractice and Constructive Fraud
The existence of a legal duty is an essential element
of the plaintiffs’ legal-malpractice and constructive-
fraud claims. See Rice v. Strunk, 670 N.E.2d 1280, 1284
(Ind. App. Ct. 1996) (listing the elements for both claims
and noting that the “plaintiffs’ claims for both attorney
malpractice and constructive fraud depend upon
the existence of a duty running from defendants to plain-
tiffs”). Generally, determining whether a defendant
owes a duty “to conform the defendant’s conduct to a
certain standard for the benefit of the plaintiff requires
that three factors be balanced: (i) the relationship
between the parties, (ii) the reasonable foreseeability of
harm to the person injured, and (iii) public policy con-
cerns.” Id. (citing Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.
1991)). Here, the plaintiffs assert two different theories
3
The plaintiffs combined their federal and state securities-
fraud claims into one count in their Fourth Amended Com-
plaint (Count 4). As the district court noted, the plaintiffs’
arguments are identical for both their federal and state
securities-fraud claims, and they have made no attempt to
distinguish between the two types of claims on appeal.
Thus, when the time comes, we will confine our analysis
to federal law only, recognizing that the fate of the plaintiffs’
federal and state securities-fraud claims is the same.
14 No. 11-3224
under which they attempt to show that the defendants
owed them a duty. First, the plaintiffs allege that they
each established an attorney-client relationship with the
defendants. Second, the plaintiffs allege that, even if
they did not establish an attorney-client relationship
with the defendants, the defendants still owed them a
duty under the Indiana Rules of Professional Conduct.
First, and more specifically, the plaintiffs contend
that the defendants formed an attorney-client relation-
ship with each individual investor (even those investors
who had never met any of the attorneys), and that
each relationship lasted past the formation of the LLCs,
extending continuously during the operation of the
investment plan. These attorney-client relationships,
the plaintiffs argue, gave rise to a legal duty that the
defendants owed to each investor.
“[T]o show the existence of an attorney-client relation-
ship, the existence of duty will turn initially on the rela-
tionship of the parties. That is, if an attorney-client rela-
tionship does not exist, it will not be necessary to reach
the foreseeability and public policy factors.” Id. The
record is devoid of evidence that the parties entered into
a formal, express attorney-client relationship. Never-
theless, “[a]n attorney-client relationship need not be
express; it may be implied by the conduct of the parties.
However, there must be evidence of a consensual rela-
tionship, existing only after both the attorney and client
have consented to its formation.” Querry & Harrow, Ltd.
v. Transcon. Ins. Co., 861 N.E.2d 719, 724-25 (Ind. App.
Ct. 2007) (citing In re Kinney, 670 N.E.2d 1294, 1297
No. 11-3224 15
(Ind. 1996)). One way that Indiana courts have held that
an implied attorney-client relationship exists is when
“ ‘[a]n attorney has . . . consented to the establishment of
an attorney-client relationship[,] there is proof of detri-
mental reliance, [and] the person seeking legal services
reasonably relies on the attorney to provide them and
the attorney, aware of such reliance, does nothing to
negate it.’ ” Douglas v. Monroe, 743 N.E.2d 1181, 1186 (Ind.
App. Ct. 2001) (quoting Hacker v. Holland, 570 N.E.2d
951, 956 (Ind. App. Ct. 1991)). Although “[a]n important
factor is the putative client’s subjective belief that he is
consulting a lawyer in his professional capacity and on
his intent to seek professional advice, . . . [a] would-be
client’s unilateral belief cannot create an attorney-
client relationship.” Id. at 1184-85 (internal quotation
marks and citations omitted).
To begin, we recognize that the defendants did in
fact form an attorney-client relationship with two of the
plaintiffs: Seytron Property Holdings, LLC, and Seytron
Investors No. 1, LLC. Indeed, the attorneys were
retained by Seybold, who was the investment plan’s
architect and the two companies’ registered agent, to
participate in the companies’ formation by drafting
articles of organization, operating agreements, a subscrip-
tion and loan agreement, and a promissory note. See
Cutshall v. Barker, 733 N.E.2d 973, 981 (Ind. App. Ct. 2000)
(citations omitted) (“[A] lawyer who is retained by a
corporation represents that corporation acting through
its duly authorized constituents.”). This relationship
was indisputably limited in scope as well as dura-
tion—Seybold hired the attorneys for the sole purpose of
16 No. 11-3224
drafting formation documents. The attorneys completed
this task in June 2005 and, according to the record
before us, had no further involvement with Seybold or
the companies.
So there is no question that the defendants owed a
duty to Seytron Property Holdings, LLC, and Seytron
Investors No. 1, LLC “to exercise ordinary skill and
knowledge” in drafting the formation documents. Rice,
670 N.E.2d at 1284 (citation omitted). But the plaintiffs
do not argue that the defendants breached a duty when
drafting the companies’ formation documents. Thus,
even though the two companies did enjoy a limited
attorney-client relationship with the defendants, there
are no issues with that relationship that are before us
on appeal. Instead, as noted above, the plaintiffs solely
argue that the defendants formed a broad attorney-
client relationship with each individual investor for the
duration of the investment plan. We will therefore
confine our analysis to that purported relationship.
In making this argument, the plaintiffs point to
White’s presentation at the April 9, 2005, seminar, along
with his brief conversations with Seybold, Whang,
Dr. Rosenbaum, Mrs. Sandusky, and Leggett, as suf-
ficient evidence to imply the existence of an attorney-
client relationship with each individual investor. The
plaintiffs highlight Seybold’s monologue during White’s
presentation at the April 9 seminar. There, Seybold
assured the plaintiffs that the attorneys “are working
for you just like they are working for me.” The
plaintiffs complain that White, who was standing just
No. 11-3224 17
a few feet away, said nothing to correct Seybold. 4 Most
of the plaintiffs never met White, Beaman, or any other
attorney at the law firm. Yet the plaintiffs argue that
White’s limited interaction with a few plaintiffs,
coupled with his presentation at the April 9 seminar,
was relayed to them by Seybold, Whang, or Leggett.
4
The plaintiffs contend that, after viewing a DVD recording
of his presentation at the April 9 seminar, White admitted
during his deposition that it was reasonable for potential
investors to believe that they had an attorney-client relationship
with the defendants. This assertion is based on the plaintiffs’
faulty reliance on an excerpt of White’s deposition. After
plaintiffs’ counsel paraphrased Seybold’s monologue during
White’s presentation at the April 9 seminar, counsel asked
White a series of questions: “Could you see how a person
could believe that we’re giving money to the company. And the
company spending money on the attorneys, I think he is my
attorney? Do you think that would be completely unreason-
able?” To this White replied, “I don’t see that, no.” Counsel
asked two questions, yet White gave only one answer. De-
pending on one’s point of view, White’s response could be
construed in favor of either party. But this ambiguity was
created by plaintiffs’ counsel’s own compound question, and
we will not allow the plaintiffs to create a triable issue of fact
by purposefully or accidentally creating such an ambiguity.
Moreover, as the district court correctly noted, it is evident
from the context of White’s testimony that he did not believe
that it was reasonable to believe that an attorney-client rela-
tionship had been formed. Accordingly, we reject the plain-
tiffs’ contention that White has admitted that potential investors
could have reasonably believed that an attorney-
client relationship was established.
18 No. 11-3224
Therefore, they claim that they reasonably relied on the
fact that the attorneys were representing each of them
individually when they made the decision to invest
in Seybold’s plan.
It is important to put White’s brief presentation at the
April 9 seminar in context. White’s presentation was
approximately seven minutes out of the several hours
that Seybold spent pitching his plan to the prospective
investors. Significantly, Seybold prefaced White’s pre-
sentation to the group by asking whether White wanted
“to add anything on the creation of the company.” Con-
sistent with that introduction, White’s subsequent com-
ments all related to the LLCs’ formation. White began
by addressing a concern raised by a prospective
investor about preventing conflicts of interest with
Seybold’s other companies. White explained that those
issues could be addressed in the operating agreement.
Further, White noted that he and the law firm were
looking into how to avoid certain securities-laws issues
that might arise from the creation of the LLCs. And
White also explained that, by structuring the investors’
company as an LLC, the investors would be insulated
from personal liability in the event a suit was filed
against Seytron Investors No. 1, LLC. These explana-
tions are consistent with White’s stated purpose for
attending the seminar. Moreover, they describe the
exact purpose for which White and the law firm
were hired—namely, to structure the LLCs in the most
economically fair and efficient way possible. No
investor could have reasonably believed that the defen-
dants would be professionally involved with the plan
past the point of the LLCs’ formation.
No. 11-3224 19
Seybold’s monologue during White’s presentation at
the April 9 seminar is also insufficient to imply an
attorney-client relationship between the parties. The
plaintiffs make much of Seybold’s representation to
the potential investors—and White’s failure to correct
him—that the attorneys “are working for you just like
they are working for me.” But Seybold began his state-
ment by saying, “I think that the other important thing
to note here is—that you’ve got to remember is—that
[the attorneys] don’t represent me. They represent
Seytron Property Holdings, okay? That means that
they represent you as well.” Additionally, Seybold intro-
duced White at the beginning of the seminar as “the
attorney who’s helping us structure the company.”
Thus, it is clear that, when taken in context, Seybold’s
statements were intended to provide assurances that
the attorneys were hired to represent the two new LLCs
during their formation. White and the other defendants
obviously envisioned the relationship in this limited
fashion, and the record clearly shows that there was no
legal relationship once the formation documents were
prepared. None of the potential investors could have
reasonably believed that Seybold’s monologue pro-
vided each of them with a personal attorney-client rela-
tionship for the indefinite future. We will not imply
an attorney-client relationship based on Seybold’s com-
ments.
White’s and Beaman’s brief meetings with a few of the
plaintiffs confirm that no reasonable investor could have
believed that the attorneys were hired to represent the
investors individually for the duration of the LLCs’
20 No. 11-3224
operation. In fact, the record shows that the plaintiffs
who met the attorneys subjectively did not believe that.
Whang met with White and Beaman at the law firm
before the April 9 seminar, and Whang came away
from that meeting with the impression that the
attorneys “were drawing up the paperwork and repre-
senting the group of investors or whoever was going to
be investing in this plan.” Dr. Rosenbaum testified at
his deposition that, based on information given at the
seminar and his brief meeting with White afterwards,
he believed that “Beau White represent[ed] the inves-
tors,” specifically, “the people potentially who would
invest in Seytron Investors No. 1, LLC.” Further,
Dr. Rosenbaum understood that the attorneys were
providing Seybold “some information . . . for the benefit
of the company, and they’re helping [Seybold] set up
this investment company.” Mrs. Sandusky, who, like
Dr. Rosenbaum, met with White briefly following the
seminar, similarly testified that she believed that White
“was our attorney and was there to protect our inter-
ests.” And Leggett’s meeting with White produced the
same understanding—namely, that the law firm was
“working on our behalf for you, for the investors.” The
testimony of each plaintiff who met White or Beaman
reflects a common understanding that the attorneys
were hired to represent the investors collectively and
for the purpose of forming the companies involved in
the investment plan.
There is yet another compelling reason why none of
the plaintiffs can establish the existence of an attorney-
client relationship. This includes those who did not meet
No. 11-3224 21
the defendants but instead relied on the assurances
of Seybold, Whang, or Leggett. When the plaintiffs in-
vested in Seybold’s plan, they each signed the Seytron
Investors No. 1, LLC operating agreement, thus averring
that they had been given “THE OPPORTUNITY TO
REVIEW SAID OPERATING AGREEMENT WITH OUR
LEGAL COUNSEL AND/OR ACCOUNTANT.” This
statement, written exactly as we portray it here and
placed directly above the signature lines in the operating
agreement, would alert a reasonable investor that he
is not represented personally—much less perpetually—by
the attorneys who were hired to draft the agreement.
Taken as a whole, no investor could have reasonably
believed that he enjoyed a personal, indefinite attorney-
client relationship based on the representations made
by the defendants and Seybold. Further, several plain-
tiffs’ subjective beliefs demonstrate that they under-
stood that the defendants were acting on behalf of the
investors as a group, not individually, and that the de-
fendants’ involvement in the investment plan did not
last beyond the companies’ formation. And the dis-
claimer included in the operating agreement that each
investor signed should have alerted a reasonable
investor that the defendants were not representing
them in their personal capacities. Given these facts, we
will not imply an attorney-client relationship between
the individual plaintiffs and the defendants.
But the plaintiffs also argue that, even if no attorney-
client relationship existed, the defendants still owed
them a duty under the Indiana Rules of Professional
Conduct. The plaintiffs cite a number of rules that the
22 No. 11-3224
defendants allegedly violated, most especially Rule 4.3,
which lays out a lawyer’s responsibility when dealing
with unrepresented persons: “When the lawyer knows
or reasonably should know that the unrepresented
person misunderstands the lawyer’s role in the matter,
the lawyer shall make reasonable efforts to correct the
misunderstanding. The lawyer shall not give legal
advice to an unrepresented person, other than the
advice to secure counsel.” IND. R ULES OF P ROF’L C ONDUCT
R. 4.3.
We need not delve into these arguments, however,
because it is quite clear that the Indiana Rules do not
create a legal duty. As the Indiana Supreme Court put it,
“the Preamble [of the Rules] ‘makes it clear that the
Rules of Professional Conduct do not purport to create
or describe any civil liability.’ ” Liggett v. Young, 877 N.E.2d
178, 183 (Ind. 2007) (quoting Sanders v. Townsend, 582
N.E.2d 355, 359 (Ind. 1991)). The relevant language of
the Preamble is as follows:
[20] Violation of a Rule should not itself give rise
to a cause of action against a lawyer, nor should it
create any presumption in such a case that a legal
duty has been breached. In addition, violation of
a Rule does not necessarily warrant any other
nondisciplinary remedy, such as disqualification of
a lawyer in pending litigation. The Rules are
designed to provide guidance to lawyers and to
provide a structure for regulating conduct through
disciplinary agencies. They are not designed to be a
basis for civil liability, but these Rules may be used
No. 11-3224 23
as non-conclusive evidence that a lawyer has
breached a duty owed to a client. Furthermore, the
purpose of the Rules can be subverted when they
are invoked by opposing parties as procedural weap-
ons. The fact that a rule is a just basis for a lawyer’s
self-assessment, or for sanctioning a lawyer under
the administration of a disciplinary authority,
does not imply that an antagonist in a collateral pro-
ceeding or transaction has standing to seek enforce-
ment of the Rule.
IND. R ULES OF P ROF’L C ONDUCT P REAMBLE. Although the
Rules may form a standard of conduct by which a
lawyer’s duty can be measured, such a duty must arise
from common law and may not be predicated on the
Rules themselves. See id.; Liggett, 877 N.E.2d at 183. We
thus reject the plaintiffs’ argument that the Rules
created a legal duty on the part of the defendants.
In sum, the plaintiffs have not demonstrated the exis-
tence of an attorney-client relationship, nor have they
established a basis for any other legal duty owed to
them by the defendants. Accordingly, the plaintiffs’ legal-
malpractice and constructive-fraud claims fail.
2. Securities Fraud
The issue of whether a legal duty exists also affects
the plaintiffs’ securities-fraud claim.5 The plaintiffs
5
The plaintiffs’ securities-fraud claim in Count 4 of their
Fourth Amended Complaint did not name the attorney-defen-
(continued...)
24 No. 11-3224
allege that White’s presentation at the April 9, 2005,
seminar contained material falsehoods on which the
plaintiffs relied when investing in Seybold’s plan. Spe-
cifically, the plaintiffs point to White’s silence during
Seybold’s monologue where he assured the potential
investors that the attorneys “are working for you just like
they are working for me.” Additionally, the plaintiffs
argue, White should have disclosed his inexperience
with business and securities law during his presentation
at the seminar. The plaintiffs assert that White’s silence
led them to forego obtaining independent legal counsel
before deciding to invest.
It is axiomatic in the context of securities law that
an alleged omission cannot be fraudulent “absent a duty
to speak.” Chiarella v. United States, 445 U.S. 222, 235
(1980). And as we have stated elsewhere, “[t]he duty to
speak comes from a fiduciary relation established by
state law.” Ackerman v. Schwartz, 947 F.2d 841, 846 (7th
Cir. 1991) (citations omitted). In the previous section, we
detailed the plaintiffs’ failure to establish such a rela-
tionship under state law. Absent such a relationship,
White had no duty to respond to Seybold’s statements,
5
(...continued)
dants. Instead, the plaintiffs argued that their civil-conspiracy
claim—Count 14 of the Fourth Amended Complaint—includes
the allegation that the defendants acted in concert with
Seybold to commit securities fraud. Nevertheless, the district
court and the parties have addressed the securities-fraud
claim as an independent claim, and so we will address it on
its merits.
No. 11-3224 25
and thus any omission on White’s part was not fraudu-
lent. Accordingly, the plaintiffs cannot maintain
a securities-fraud claim and the district court properly
granted the defendants summary judgment on this
claim as well.
B. Actual Fraud
The plaintiffs next contend that the district court erred
in holding that they failed to establish a claim for actual
fraud against the defendants. An actual-fraud claim
consists of the following elements:
(1) a material misrepresentation of a past or exist-
ing fact which (2) was untrue, (3) was made
with knowledge of or in reckless ignorance of
its falsity, (4) was made with the intent to
deceive, (5) was rightfully relied upon by the com-
plaining party, and (6) which proximately caused
the injury or damage complained of.
Wheatcraft v. Wheatcraft, 825 N.E.2d 23, 30 (Ind. App. Ct.
2005) (citing Lawyers Title Ins. Corp. v. Pokraka, 595 N.E.2d
244, 249 (Ind. 1992)). The district court held that the
first element was dispositive here—namely, that
because the defendants’ alleged representations all re-
garded future conduct and did not address past or
existing facts, the plaintiffs could not maintain an actual-
fraud claim. The plaintiffs cry foul, pointing to White’s
endorsement-by-silence of Seybold’s statements during
White’s presentation at the April 9 seminar, as well as
White’s assurance that his law firm would handle the
formation of the LLCs.
26 No. 11-3224
“Actual fraud may not be based upon representations
of future conduct, broken promises, or representations
of existing intent that are not executed.” Ruse v. Bleeke,
914 N.E.2d 1, 10 (Ind. App. Ct. 2009) (citation omitted).
At the April 9 seminar, Seybold assured the investors
that the attorneys would be looking out for everyone
when forming the companies. White commented on the
limited liability that the LLC structure afforded
investors, and briefly described the attorneys’ attempts
to avoid securities law and to draft operating agree-
ments that avoided conflicts of interest with Seybold’s
other companies. All of these statements necessarily
concerned future conduct or were representations of
existing intent that had not yet been executed. The
main topic of conversation at the April 9 seminar—
namely, the formation and structure of the LLCs—was
hypothetical because none of the investors had yet
decided on whether to invest in Seybold’s plan. And, as
White later testified, the future was quite uncertain:
“[W]e . . . had been contacted to perhaps set up the
entities. So as I sit there, I don’t know what is going
to happen from that point on. [The potential investors]
could decide to not have us do anything.” Accordingly,
the representations from the April 9 seminar on which
the plaintiffs rely cannot form the basis of an actual-
fraud claim. The district court properly entered sum-
mary judgment against the plaintiffs on this claim.
C. Civil Conspiracy
“A civil conspiracy is a combination of two or more
persons who engage in a concerted action to accomplish
No. 11-3224 27
an unlawful purpose or to accomplish some lawful pur-
pose by unlawful means.” K.M.K. v. A.K., 908 N.E.2d 658,
663 (Ind. App. Ct. 2009) (citing Boyle v. Anderson Fire
Fighters Ass’n Local 1262, 497 N.E.2d 1073, 1079 (Ind. App.
Ct. 1986)). In Indiana, there is no independent cause
of action for civil conspiracy. Id. But a plaintiff may sue
for damages that result from such a conspiracy if he can
demonstrate that the defendants acted in concert
with another party in the commission of an independent
tort. See id. at 663-64. The plaintiffs alleged that the de-
fendants conspired with Seybold to commit the following
independent torts: securities fraud, federal and state
RICO violations, conversion and theft, actual fraud,
larceny by conversion, and usurpation of business and
investment opportunities.
We need not address the merits of each independent
tort (although we did so above with the plaintiffs’
securities-fraud claim) because the plaintiffs have failed
to demonstrate that the defendants acted in concert
with Seybold to commit any unlawful act, or that they
accomplished a lawful purpose through unlawful
means. There is no evidence that, nor do the plaintiffs
contend that, the substance of the work that Seybold
hired the defendants to perform was unlawful. The
record evidence shows that the defendants drafted the
articles of organization, operating agreements, a sub-
scription and loan agreement, and a promissory note.
They had no involvement with soliciting or managing
investments. At bottom, the defendants performed
lawful work to accomplish the lawful purpose of forming
LLCs for Seybold’s investment plan. This work was
28 No. 11-3224
completed by June 2005—two months before the first
investments poured in. Thus, even if Seybold acted nefari-
ously with the investments, because there is no evi-
dence that the attorneys performed work for, or even
maintained contact with, Seybold or the LLCs beyond
that date, the plaintiffs cannot succeed on their civil-
conspiracy claim. Thus, the district court properly
granted summary judgment to the defendants on this
claim as well.
III.
The plaintiffs failed to establish either that an attorney-
client relationship existed or that the defendants owed
them some other legal duty. Accordingly, the district
court properly granted the defendants summary judg-
ment on the plaintiffs’ legal-malpractice, constructive-
fraud, and securities-fraud claims. And because the
plaintiffs relied solely on representations by the
defendants that concerned only future conduct, or on
representations of existing intent that were not yet exe-
cuted, the plaintiffs’ actual-fraud claim also cannot
survive summary judgment. Finally, the plaintiffs failed
to provide any evidence that the defendants acted in
concert with Seybold to commit an unlawful act or to
accomplish a lawful purpose through unlawful means.
Thus, the district court did not err in granting the de-
fendants summary judgment on the plaintiffs’ civil-con-
spiracy claim. For these reasons, we A FFIRM .
8-16-12