Lawyer Sues Another Lawyer In California
In Pollack v. Lytle (1981) 120 Cal. App. 3d 931, Attorney Pollack sued Attorney Lytle for breach of fiduciary duty, fraud, breach of contract, legal malpractice and declaratory relief arising out of their joint representation of a client in a medical malpractice action.
Pollack alleged in his complaint that he and the client had agreed that he would be paid 50 percent of any recovery obtained by the client.
Relying on Lytle's false representations, Pollack associated Lytle as trial counsel, and agreed that he would receive one-third of Pollack's 50 percent contingent fee.
Unbeknownst to Pollack, Lytle did not properly prepare the case for trial. Because of Lytle's continued misrepresentations, Pollack advised the client to reject a $ 250,000 pretrial settlement offer.
The case went to trial, and due to Lytle's improper handling of the case, the jury returned a defense verdict in the medical malpractice action.
Adding insult to injury, Lytle convinced the client to sue Pollack for legal malpractice. (Pollack, supra, 120 Cal. App. 3d at pp. 936-939.)
The Court of Appeal, over a strongly worded dissent, reversed the trial court's order sustaining Lytle's demurrer, holding that simple agency principles governed the relationship of associate counsel. ( Pollack, supra, 120 Cal. App. 3d at pp. 940-943.)
Although it acknowledged "the growing body of law which holds, as a matter of public policy, that a successor attorney owes no duty to his predecessor" ( id. at p. 942), the majority found the policy rationale of these cases inapplicable to cases involving associate, or concurrent counsel. It reasoned:
"The roles of successor and associate attorneys are decidedly different. In the fulfillment of his duty of undivided loyalty to the client, a successor attorney must view the client's situation as of the moment when he is engaged. Hence public policy requires that he not be subjected to any possible conflict of interest which may deter him from determining the best interests of the client by the possibility that he may be held liable for his acts by his predecessor.
In contrast, an associate attorney acting as the agent of the principal attorney replaces no one, but acts at the behest of his principal.
Admittedly, he remains bound to act in the best interests of the client, but this creates no unavoidable conflict" for he can make a full disclosure to the principal who, acting in the client's best interest, will "prompt the principal attorney to act in protection of those interests.
However, should the principal attorney choose to ignore the client's interests, the agent-associate remains free to terminate the agency relationship and withdraw as associate counsel." (Ibid.)
Assigned Justice Barbara Jean Johnson dissented from the majority on the ground that no rational distinction could be made between the duties running to successor attorneys and those running to cocounsel.
"There is a substantial body of law concerning the liability of attorneys who sue each other in connection with common clients. a fiduciary relationship has not heretofore been recognized, and, regardless of legal theory asserted, there has emerged a recurring theme; a client's right to the undivided loyalty of his or her attorneys must be protected, even when the result of such rule is the denial of an attorney's cause of action against another attorney." ( Pollack, supra, 120 Cal. App. 3d at p. 945 (dis. opn. of Johnson, J.).)