Legal Malpractice and the Liability of Successor Counsel

Transcription

1 Professional Liability Pay It Forward By Daniel B. Meyer and Edward C. Eberspacher IV A discussion of which jurisdictions have adopted the doctrine and its effect. Legal Malpractice and the Liability of Successor Counsel Oscar Wilde once said that It s not whether you win or lose, it s how you place the blame. Blame is a concept that holds a central place in the professional lives of most litigators. And given the case-within-a-case nature of legal malpractice actions, that observation becomes doubly so for those practicing in that arena: litigators must assess blame within the underlying case and then again in the malpractice action. This article addresses the tripling of that blame, the adding of another layer to it: that of successor counsel and his or her liability. It is not uncommon for a client to retain successive counsel to represent him or her in the same action. Typically, successor counsel is retained in one of two circumstances. The first may arise when the client becomes dissatisfied with predecessor counsel s handling of the case. Perhaps the client receives an adverse ruling from the court on an important issue, or counsel does not move forward with discovery quickly enough, or the client perceives counsel as less zealous than the client expects. The client thus terminates predecessor counsel and retains successor counsel. The second may come about when predecessor counsel resigns the representation. This may occur when the client maintains unrealistic goals that counsel cannot attain, or when the client refuses to satisfy counsel s invoices, or insists that counsel engage in conduct that is unethical or even illegal. In such instances, predecessor counsel resigns, and the client replaces him or her with successor counsel. But what happens when the client is dissatisfied with the final outcome of the case? If the client perceives legal malpractice, a malpractice action may follow. And if the client believes that predecessor counsel is at fault and that successor counsel merely tried to fix what predecessor counsel broke, that malpractice action may be filed against predecessor counsel alone. This is where the successor counsel liability doctrine comes into play. To illustrate, suppose Client retains Attorney A to represent him in a bodily n Daniel B. Meyer is a partner in the Chicago law firm of O Hagan Spencer LLC, where his practice focuses on the defense of lawyers and other professionals in malpractice actions. He is a member of DRI s Professional Liability and Lawyers Professionalism and Ethics Committees, and he serves as the editor for the Professional Liability Committee s newsletter. Edward C. Eberspacher IV is an associate with O Hagan Spencer LLC in Chicago where his practice focuses on professional liability. He is a member of DRI s Professional Liability and Lawyers Professionalism and Ethics Committees. 16 n For The Defense n May DRI. All rights reserved.

2 injury action resulting from a car accident. Several months later, Attorney A writes to Client informing Client that Attorney A is unable to continue the representation. The letter incorrectly advises Client that the applicable statute of limitation is two years when, in fact, it is only one year. Before the correct statute of limitation expires, Client consults with Attorney B about representing him, but Attorney B declines the representation. After the correct statute of limitation expires, Client retains Attorney C to represent him. Attorney C files a complaint, but it is promptly dismissed. This illustration is not one of a successor counsel case: Client and Attorney B never formed an attorney-client relationship, and Client s cause of action was when he retained Attorney C. Attorney A is the only realistic target of Client s malpractice action. Assume instead that when Attorney B declined representation, Client immediately retained Attorney C and, though one month remained before the statute of limitation expired, Attorney C failed to file a complaint in a timely manner. This raises the specter of the successor counsel doctrine. If Client were to file a legal malpractice complaint against Attorney A, Attorney A may rightly say, Don t blame me. Blame Attorney C. The doctrine of successor counsel liability arises in this context. It is a theory that attempts to defeat the proximate cause element of the client s legal malpractice action. It argues that successor counsel s subsequent negligence constitutes a superseding cause of the client s damages that breaks the chain of causation between predecessor counsel s negligence and the client s damages. But the successor counsel liability doctrine is not applied universally across the United States. Certain jurisdictions bar predecessor counsel from placing blame on successor counsel, citing public policy interests and other considerations. Other jurisdictions allow predecessor counsel to argue successor counsel s liability whether through affirmative defenses or third-party contribution actions but differ in the manner in which they allow the doctrine and as to its affect. Given this inconsistent treatment of successor counsel, this article is devoted to a discussion of which jurisdictions have adopted the doctrine and, when allowed, its effect. Where You Can Place the Blame Among those jurisdictions that permit predecessor counsel to place blame at the feet of successor counsel, two theories emerge and two effects. Some states allow the doctrine to shield predecessor counsel if the underlying action was viable when his or her representation terminated, and even hold that predecessor counsel may obtain summary judgment through application of the doctrine. Other states focus not on whether the underlying action was viable upon predecessor counsel s termination, but on whether successor counsel s negligence was reasonably foreseeable. And even among these states, the effect of successfully applying the doctrine differs: some enter summary judgment in favor of predecessor counsel, while others find that reasonable foreseeability is a question of fact for jury determination. The Viability Jurisdictions Illinois is among those jurisdictions recognizing successor counsel liability as a superseding cause of a client s damages. Instructive is Land v. Greenwood, 133 Ill. App. 3d 537, 478 N.E.2d 1203 (4th Dist. 1985), where the client discharged predecessor counsel six months after filing the underlying action. At the time of the discharge, predecessor counsel had not yet served process on certain defendants. By the time successor counsel served the defendants, a year had passed since the action was filed. The defendants moved for dismissal, and the trial court granted it for lack of diligence in effectuating service of process. The client then brought a malpractice action against predecessor counsel. Concluding that successor counsel became involved in the case when it was still viable, the appellate court held that predecessor counsel could not be held liable as a matter of law. Regardless of the successor counsel s possible negligence, successor counsel had the duty to preserve his client s cause of action. It was viable when he received it; it was not when he got through with it. Id., 133 Ill. App. 3d at 540, 478 N.E.2d at 1205; see also, Goran v. Glieberman, 276 Ill. App. 3d 590, 659 N.E.2d 56 (1st Dist. 1995) (short of summary judgment, predecessor counsel may seek contribution from successor counsel). New York courts, in addressing superseding cause in legal malpractice cases, also focus on the viability of the cause of action when successor counsel replaces predecessor counsel. In Perks v. Lauto & Garabedian, 306 A.D.2d 261, 760 N.Y.S.2d 231 (2d Dept. 2003), a client brought a Certain jurisdictions bar predecessor counsel from placing blame on successor counsel. legal malpractice action against predecessor counsels claiming that they failed to adequately investigate the assets and insurance coverage of the defendant involved in an automobile collision with the client. In response, predecessor counsels submitted evidence that the client discharged them and subsequently hired successor counsel two months before the client settled her claim against the driver. The reviewing court held that the trial court erred in denying predecessor counsels motion for summary judgment. The court stated: [S]ubsequent counsel had a sufficient opportunity to protect the plaintiff s rights, and any negligence by the [original attorneys] was not the proximate cause of the plaintiff s alleged damages. Therefore, the [original attorneys] established their entitlement to judgment as a matter of law. Id. at 262, 232 (internal citations omitted). See also, Richardson v. Lindenbaum, 836 N.Y.S.2d 489 (2007) (holding that In cases where a successor counsel had sufficient time to protect a party s rights the outgoing counsel could not be liable for malpractice ); Albin v. Pearson, 289 A.D.2d 272, 734 N.Y.S.2d 564 (2d Dept. 2001) (summary judgment in favor of original attorney despite alleged failure to conduct a proper title search since foreclosure of the subject mortgages remained viable for nearly three years after [original counsel] was discharged and successor counsel had suf- For The Defense n May 2009 n 17

3 Professional Liability ficient time to adequately protect [client s] rights ); and Pyne v. Block & Associates, 305 A.D.2d 213, 760 N.Y.S.2d 30 (1st Dept. 2003) (holding that the proximate cause of any damages sustained by plaintiff was not the alleged malpractice of defendants, but rather the intervening and superseding failure of plaintiff s successor attorneys to timely serve any of the potentially liable parties ). Like Illinois and New York, Michigan courts focus on the viability of the client s cause of action in determining whether successor counsel s negligence defeats the client s action against predecessor counsel as a matter of law. In Ward v. Harris, 2002 WL (Mich. App. 2002), the client asked predecessor counsel to bring a medical malpractice action against a doctor. Predecessor counsel agreed to serve a notice of intent to file a claim, but if the physician declined to resolve the matter without suit, predecessor counsel would not prosecute the matter any further. Three weeks before the statute of limitation expired on the client s cause of action, predecessor counsel wrote to the client notifying him that the insurance carrier had refused to settle, and that predecessor counsel intended to close his file. Predecessor counsel also noted in the letter to the client that the statute of limitation would be expiring within the next several weeks. Id. at *1. The client retained successor counsel sometime between 16 and 14 days before the statute of limitation expired. The reviewing court affirmed summary judgment in favor of predecessor counsel, specifically noting that at the time the attorney- client relationship between plaintiff and defendant ceased, plaintiff had more than two weeks to file his medical malpractice suit. Id. at *3. These cases involve situations in which predecessor counsel allegedly breached his or her duty to the client by either (a) negligently performing an act, or (b) not performing it at all under circumstances where the law imposed an affirmative duty to do so. And yet, predecessor counsel avoided liability because the courts held that predecessor counsel s negligence did not, as a matter of law, proximately cause the client s loss. According to these courts, successor counsel could have preserved the client s cause of action and this absolved predecessor counsel of liability. The courts 18 n For The Defense n May 2009 reasoning invoked the concept of superseding cause, which breaks the chain of causation so that a negligent actor is excused from liability. This rule is consistent with the Restatement (Second) of Torts, 452(2), which under certain circumstances shifts the duty of care from one negligent actor to another, rather than holding both negligent actors jointly liable. Section 452 (2) states: Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause. Restatement (Second) of Torts 452 (2) (1965). The Comments to section 452 clarify the theory that many states apply: The situation covered is that in which, after the original actor has been negligent and so has created an unreasonable risk of harm to another, a third person has the opportunity, by taking affirmative action, to avert the threatened harm. This implies that if such action were taken, it would prevent the negligence of the original actor from causing the harm which has in fact resulted. Restatement (Second) of Torts 452, Comment a (1965). Stated differently: [W]hen the duty of care shifts from the original attorney to the successor, so does the liability, provided that the successor had the opportunity to undo or avert the harm precipitated by the actions or omissions of the original attorney. Lopez v. Clifford Law Offices, P.C., 362 Ill. App. 3d 969, 980, 841 N.E.2d 465, 475 (1st Dist. 2005). Thus, in Illinois, New York and Michigan, predecessor counsel may be protected from his or her own negligence if successor counsel was retained while the client s cause of action remained viable. The Reasonable Foreseeability Jurisdictions As noted at the outset of this article, certain jurisdictions eschew the viability test and instead employ a reasonable foreseeability test. This discussion begins best by quoting the California Court of Appeals: [A] negligent lawyer is not relieved of the consequences of his lack of care because he is replaced by a new lawyer who is also negligent. This is because [a]n independent intervening act is a superseding cause relieving the actor of liability for his negligence only if the intervening act is highly unusual or extraordinary and hence not reasonably foreseeable. Reasonable foreseeability in this context is a question for the trier of fact. That a negligent lawyer may be replaced by another negligent lawyer is reasonably foreseeable. Williams v. Zuckerman, 2005 WL , *14 (Cal. App. 2 Dist. 2005) (red flag treatment attributable to unpublished status), citing, in part, Cline v. Watkins, 66 Cal. App. 3d 174, 135 Cal. Rptr. 838 (2d Dist. 1977). Thus, while recognizing the doctrine of successor counsel liability as a defense to malpractice actions, some jurisdictions focus on whether successor counsel s negligence is foreseeable, rather than whether the underlying action was viable when successor counsel was retained. If successor counsel s negligence was reasonably foreseeable, predecessor counsel will not be relieved of the consequences of his or her own negligence. If successor counsel s negligence was not reasonably foreseeable by predecessor counsel, it will be deemed a superseding cause. But either way, because the issue is foreseeability, it is to be determined by the trier of fact in all but the most exceptional circumstances. Cline v. Watkins is instructive. 66 Cal. App. 3d 174, 135 Cal. Rptr. 838 (2d Dist. 1977). In Cline, a malpractice action alleging that predecessor counsel (who filed the client s complaint in her divorce action) and successor counsel (who was thereafter substituted for the first attorney) negligently failed to assert the client s community interest in her then-husband s Air Force pension. The trial court granted predecessor counsel s motion to dismiss on the ground that successor s failure to prevent the harmful consequences of predecessor counsel s negligence absolved predecessor counsel from liability as a matter of law. The dismissal may have passed scrutiny in viability jurisdictions, but not in California, where the focus tends to rest on foreseeability of successor counsel s action or, in the case of Cline, inaction. In reversing the dismissal, the court in Cline noted that an independent inter-

4 vening act is a superseding cause relieving the actor of liability for his negligence only if the intervening act is highly unusual or extraordinary and hence not reasonably foreseeable. The Cline court held that in all cases of attorney malpractice it is reasonably foreseeable that successor counsel will act negligently. This rule is consistent with the Restatement (Second) of Torts, 452(1) (and Comments), which provides that the originally negligent actor generally remains liable although a third person negligently fails to discharge a duty to affirmatively act to prevent harm, if the third person s conduct is reasonably foreseeable: Except as stated in Subsection (2), the failure of a third person to act to prevent harm to another threatened by the actor s negligent conduct is not a superseding cause of such harm. Restatement (Second) of Torts 452 (1) (1965). The issue of the proximate causation of damage flowing from [the first attorney s] negligence is thus one of foreseeability, held the court, to be determined by the trier of fact. Cline, 66 Cal. App. 3d at 180. Florida, Georgia and New Mexico similarly follow the foreseeability approach to successor counsel liability applied by California. See Andrews v. Saylor, 134 N.M. 545, 80 P.3d 482 (N.M. App. 2003) (holding that malpractice by successor attorney is a foreseeable consequence of the original attorney s malpractice; as such, question for trier of fact); Meiners v. Fortson, 210 Ga. App. 612, 436 S.E.2d 780, (Ga. App. 1993); Frazier v. Effman, 501 So. 2d 114 (Fla. 4th DCA 1987). Unlike California and New Mexico, however, Georgia and Florida courts adhere to the notion that successor counsel s negligence can be so unforeseeable as to constitute a sufficient intervening cause relieving predecessor counsel from liability as a matter of law. In Meiners v. Forston, the client was injured in an automobile collision; she retained counsel to pursue her claims. Counsel filed a complaint naming the correct defendant, but listed the defendant s address incorrectly on both the complaint and summons. As a result, the sheriff did not serve the defendant. The client subsequently fired predecessor counsel and retained successor counsel to pursue her claim. Predecessor counsel, realizing his mistake, called successor counsel to inform him that the defendant had not been served, explicitly advising him of the service problem. Id. at 613, 781. When the client terminated predecessor counsel, more than six months remained before the statute of limitation expired. However, service was not perfected, and the client s action was dismissed. Applying the reasonable foreseeability test, the Meiners court summarized the pivotal question as follows: [W]hether substitution of new counsel who negligently fails to cure the results of the first counsel s negligence cuts off the first counsel s liability. As with any proximate cause question involving an intervening negligent act of a third party, the answer depends on the foreseeability of the intervening negligence. Id. (emphasis supplied). In contrast to the California and New Mexico courts, the Meiners court held that if counsel is specifically advised by predecessor counsel that a party needs to be served and successor counsel has more than six months to accomplish service, it is not reasonably foreseeable that that the second attorney will fail to cure the first attorney s error and perfect service as a matter of law. Id.; see also, Frazier (it was not reasonably foreseeable that successor counsel would fail to bring defendant into action where the complaint shows that predecessor counsel was discharged and successor counsel retained eight months prior to expiration of the statute of limitation). The reasonable foreseeability cases, like the viability cases from Illinois, New York and Michigan, involve situations in which predecessor counsel allegedly breached a duty to the client by either (a) negligently performing an act, or (b) not performing it at all under circumstances where the law imposed an affirmative duty to do so. Unlike the viability cases, however, original counsel may or may not avoid liability in the reasonable foreseeability jurisdictions. The question is not whether the client s action was viable when successor counsel received it. Instead, the question is whether successor counsel s negligence was reasonably foreseeable. In California and New Mexico, that is a jury question. In Florida and Georgia, the strength of the successor attorney defense turns on facts and rarely, but on occasion, successor counsel s negligence is not reasonably foreseeable. In these instances, predecessor counsel may be relieved of liability as a matter of law. Where You Cannot Place the Blame While jurisdictions such as Illinois, New York, California and New Mexico allow the use of the successor counsel liability doctrine (albeit under differing circumstances and to different affect), still other jurisdictions affirmatively deny predecessor counsel the opportunity to place blame on the shoulders of successor counsel. These jurisdictions decline to insulate predecessor counsel from liability where successor counsel s negligence is a superseding cause, for reasons that generally fall into one of two categories: public policy, and lack of duty owed by successor counsel to predecessor counsel. The Public Policy Jurisdictions To varying degrees, the courts that have invoked public policy interests to prevent predecessor counsel from shielding himor herself with successor counsel s acts or omissions have focused on the interference the defense might have on the relationship between the client and successor counsel. In Stone v. Satriana, the Supreme Court of Colorado explained these concerns: First, courts focus on the danger of joining successor counsel as either a nonparty or a third-party as an unfair litigation tactic. Second, there is concern over the adverse affect it would have on a client s ability to pursue a malpractice action. Third, such action would allow a third party to interfere with the attorneyclient confidences of the client. 41 P. 3d 705, 710 (2002), with previous citation to Austin v. Superior Court, 72 Cal. App. 4th 1126, 85 Cal. Rptr. 2d 644 (1999); Cal. State Auto. Ass n v. Bales, 221 Cal. App. 3d 227, 270 Cal. Rptr. 421 (1990); Holland v. Thacher, 199 Cal. App. 3d 924, 245 Cal. Rptr. 247 (1988); Gauthier v. Kearns, 47 Conn. Supp. 166, 780 A. 2d 1016 (2000); Waldman v. Levine, 544 A. 2d 683 (D.C. 1988); Melrose Floor Co., Inc. v. Lechner, 435 N.W.2d 90 (Minn. Ct. App. 1989); Eustis v. The David Agency, 417 N.W.2d 295 (Minn. For The Defense n May 2009 n 19

5 Professional Liability Ct. App. 1987); Hughes v. Housley, 599 P. 2d 1250 (Utah 1979). The unfair litigation tactic of concern in the first instance relates to the potential disqualification of successor counsel. Often enough, successor counsel is retained to create lemonade from lemons, to attempt to fix what predecessor counsel wrought on the client. And when it cannot be fixed, The viability and foreseeability jurisdictions do not consider whether any duty runs between successor and predecessor counsels. successor counsel may represent the client in a malpractice action against predecessor counsel. Under these circumstances, courts invoking public policy interests may prevent predecessor counsel from raising successor counsel s conduct as a defense because, by doing so, predecessor counsel is putting successor counsel in a position where his or her continued representation of the client may present a conflict of interest and thus bring about an effective disqualification (if not one ethically required). Public policy interests come into play in these circumstances because depriving a client of his or her counsel of choice is not taken lightly. Stone, 41 P. 3d at 710 (citing Holland). The second public policy justification cited by the Stone court for preventing predecessor counsel from using successor counsel s acts or omissions as a defense is a variation of the first. The conflict of interest that may be created as between the client and successor counsel will almost necessarily divert successor counsel s attention from the job-at-hand: fixing what predecessor counsel broke. Rather than focusing solely on how to protect the client s best interests, successor counsel s self protective reservations may enter the arena and he or she will take steps to protect him- or 20 n For The Defense n May 2009 herself from a malpractice claim. Stone, 41 P. 3d at 710. Another potential adverse consequence when the successor counsel liability doctrine is applied is the chilling effect it may have on legal malpractice actions: Because of the nature of the attorney function, the attorney is the only professional who has a duty to advise a client that a malpractice action against another professional may provide a solution to the client s difficulties. If such a malpractice action could generate a cross-complaint against the attorney who urged that course, it can easily detract from the attorney s duty to selflessly and energetically serve the client s interests. Stone, 41 P. 3d at 710. As to the third justification, the Stone court noted that application of the successor counsel doctrine may work to invade the confidences between the client and successor counsel. The court recognized that a malpractice action between client and attorney necessarily involves a waiver of the attorney-client privilege, thus permitting the attorney to disclose confidences in his or her own defense. But the court drew a distinction between the simple client-versus-attorney malpractice action and one in which the attorney raises the specter of successor counsel s liability. In the latter instance, a third party (predecessor counsel) will attempt to jeopardize the attorney-client privilege as between the client and successor counsel. The court found that allowing that situation to develop is contrary to public policy. 41 P. 3d at 711. A Connecticut superior court reached the same conclusion, but from a different angle. It recognized that if predecessor counsel is permitted to invoke successor counsel s negligence and bring successor counsel into the litigation, successor counsel might then be forced to ask his or her client to waive the attorney-client privilege that exists between the client and successor counsel such that successor counsel can defend him- or herself. Gauthier, 780 A. 2d at Presumably, this is considered contrary to public policy because neither the client nor his or her attorney is calling for the waiver, but rather, a stranger to the relationship is. Of note, the Court of Appeals of Maryland has rejected these policy considerations, considering them illegitimate bars to predecessor counsel s ability to invoke the successor counsel liability doctrine: While we too are concerned with protecting the attorney-client privilege and the attorney-client relationship, this Court is reluctant to exempt a potential tortfeasor from accepting the blame for its negligent actions. Parler & Wobber v. Miles & Stockbridge, PC, 359 Md. 671, 756 A. 2d 526 (App. Ct. 2000). The Illinois Appellate Court was similarly concerned about the deleterious effects of preventing the doctrine s use, noting that successor counsel, no matter how egregious their conduct, would be immunized from suit simply because the client whom they continue to represent chooses not to sue her current counsel. Goran, 276 Ill. App. 3d at 597, 659 N.E.2d at 61. Moreover, the first two public policy justifications appear to assume, in large measure, that successor counsel is also malpractice counsel. Often enough, this is true. See, e.g., Land. But just as often it is not. And if malpractice counsel is not successor counsel, the policy considerations that put successor counsel and the client at risk (for disqualification, conflicts of interest, diversion of focus) should thus have no application to malpractice counsel. In other words, malpractice counsel s zealous advocacy of the client s interests should in no way be tempered by a fear of becoming the target of a successor counsel defense. Nonetheless, Colorado, Utah, Minnesota and Connecticut courts have all expressed sufficient respect for the relationship between the client and successor counsel to prevent predecessor counsel from employing the successor counsel liability defense in those states. The Duty Jurisdictions There are a number of jurisdictions that disallow the successor counsel liability doctrine on the theory that successor counsel owes no duty to predecessor counsel. Olds v. Donnelly, 150 N.J. 424, 696 A. 2d 633 (1997); Connell, Foley & Geiser, LLP v. Israel Travel Advisory Service, Inc., 377 N.J. Super. 350, 872 A. 2d 1100 (2005); Stone; Hughes.

6 In Hughes, the Supreme Court of Utah took the analysis a step further and invoked public policy interests as a rationale to explain why no such duty should ever be found. There, predecessor counsel failed to tender a responsive pleading on behalf of the client and a default judgment was thereafter entered. The client then terminated predecessor counsel and retained successor counsel. After the trial court denied successor counsel s motion to vacate the default judgment, he filed a malpractice action on the client s behalf against predecessor counsel. The court upheld the trial court s dismissal of predecessor counsel s thirdparty complaint against successor counsel, finding that to impose upon successor counsel a duty owed to predecessor counsel would be to subject the second attorney to potential conflicts of interest in trying to serve two masters. 599 P. 2d at By raising duty as a reason why predecessor counsel may not use the successor counsel liability doctrine as a defense, the duty jurisdictions place themselves at direct odds with those jurisdictions that recognize the defense (in whatever form). The viability and foreseeability jurisdictions do not consider whether any duty runs between successor and predecessor counsels, but instead focus on the concept of joint and several liability, where predecessor counsel s right of contribution against successor counsel is predicated on successor counsel s direct liability to the client. See, Parler & Wobber. What Does All of This Mean? Someone with less wit than Oscar Wilde once said, Location, location, location. And that is precisely what all of this means. The availability of the successor counsel liability doctrine whether used as an affirmative defense or in a third-party pleading seeking contribution depends entirely on where the malpractice action is adjudicated. Consider this variation on the illustration set forth at the outset of this article: Client retains Attorney A to represent him in a bodily injury action resulting from a car accident. One month before the applicable statute of limitation expires, Attorney A writes to Client informing Client that Attorney A is unable to continue the representation. The letter incorrectly advises Client that the statute of limitation expires in thirteen months, when it in fact expires in one month. One week before the correct statute of limitation expires, Client retains Attorney B, who fails to file the complaint in a timely manner. Client then asks Attorney B to file a malpractice action against Attorney A. Under this scenario, Client can probably maintain a cause of action against Attorney A. Attorney A likely breached the standard of care by misinforming Client of the applicable statute of limitation and Client can likely plead enough facts to support proximate cause and damages. But can Attorney A defend his or her own negligence by arguing that Attorney B s subsequent negligence breaks the chain of causation between Attorney A s negligence and Client s damages? It all comes down to the jurisdiction in which the case is adjudicated. If Client and the Attorneys are all in Colorado, Utah, Minnesota or Connecticut, Attorney A s attempts to implicate Attorney B would be rejected on public policy grounds. Courts there would be fearful that applying the successor counsel liability doctrine might impede Client s right to counsel of his or her choice, create a conflict of interest disqualifying Attorney B from prosecuting the malpractice action, and invade the confidences of Client and Attorney B. If the parties are all located in New Jersey, the result would be the same, but for different reasons. There, the trial court would likely dismiss Attorney B not necessarily on grounds of public policy, but rather due to the lack of any duty owed by Attorney B to Attorney A. Attorney A would likely receive a warmer response to his contentions against Attorney B in Illinois, New York, Michigan, Georgia or Florida and, to a lesser degree, California and New Mexico. In Illinois, New York and Michigan, if Attorney A can establish that Client s cause of action was still viable when their relationship terminated, and that Attorney B s negligence was the proximate cause of Client s damages, then Attorney A may be able to obtain summary judgment. If Attorney A can establish that Attorney B was negligent but that such negligence was not foreseeable, he may be able to The availability of the successor counsel liability doctrine depends entirely on where the malpractice action is adjudicated. obtain summary judgment in Georgia and Florida, as well. In all five of these states Illinois, New York, Michigan, Georgia and Florida even if the facts did not support summary judgment, it appears that those facts could still be argued to a jury in the context of seeking contribution. By contrast, in California or New Mexico, while Attorney A would likely be permitted to argue Attorney B s negligence, he would have to make that argument to a jury. In particular, Attorney A would not only have to convince a jury of Attorney B s negligence, but also that such negligence was not foreseeable. And regardless of the jurisdiction in which any legal malpractice action may be pending, a risk management observation or two can be gleaned from these cases and the legal concepts that underlie them. On the one hand, it greatly behooves predecessor counsel, upon turn-over of the litigation file to successor counsel, to include a memorandum or some similar communication highlighting any approaching deadlines, activities that need to be undertaken, weaknesses that need to be shored up, et cetera. On the other, successor counsel should take care to treat his or her new engagement as more than simply a new case. While the case may be new to successor counsel, it is not to the client and successor counsel does not approach a clean slate. There may be issues that predecessor counsel neglected or failed to follow-up on. While it is not the law in every jurisdiction that successor counsel owes a duty to fix predecessor counsel s mistakes, it is not altogether a bad risk management tool to identify those mistakes and determine, with input from the client, the best manner in which to fix them. For The Defense n May 2009 n 21