CONTRIBUTION CLAIMS AGAINST SUCCESSOR COUNSEL IN LEGAL MALPRACTICE CASES By: Elizabeth Cristofaro and James L. Brawley, Partners, Hartford Office
As a legal claims specialist, you are presented with a complaint alleging that your insured is being sued for malpractice by his former client who is now being represented by Attorney A. As you review the complaint, it becomes clear that Attorney A may have also committed malpractice and that either Attorney A, alone, or that both your insured and Attorney A, are responsible for the plaintiff’s damages. Your immediate thought is that your insured should not be responsible for the entire amount of the damages claimed and that Attorney A, should be a party to the case. An intriguing question that has divided courts throughout the United States is whether an attorney sued by a client for legal malpractice can bring a third-party action for contribution or apportionment against successor counsel on the theory that successor counsel committed malpractice while representing the same client in the same matter. This article discusses the current status of the law in Connecticut, Massachusetts, New York and Rhode Island. The article also provides a survey of the law in other states. The majority view, followed in Massachusetts and New York, is to allow such actions to be brought against successor counsel. The minority view, followed in Connecticut, does not. As of yet, the Rhode Island courts have not spoken on the issue. CONNECTICUT The Connecticut appellate courts have not yet ruled on the issue of whether predecessor counsel can maintain an apportionment claim against successor counsel in a legal malpractice action. Two Connecticut Superior Court cases, however, have supported the minority view prohibiting predecessor counsel from bringing such a claim. In Gauthier v. Kearns, 47 Conn. Supp. 166 (2000), the court granted successor counsel’s motion to dismiss the apportionment complaint brought against him by predecessor counsel. The court reasoned that Connecticut’s apportionment statute, C.G.S. § 52-572h(b), applies only to negligence actions to recover damages arising from, “personal injury, wrongful death or damage to property.” Gauthier at 172. In Gauthier, the damages alleged in the legal malpractice action was the loss of medicaid benefits. The court held that the loss of medicaid benefits did not constitute property damage within the meaning of the apportionment statute. The Gauthier court interpreted the phrase “damage to property”to mean damage to or loss of use of tangible property. Gauthier at 174. The court concluded that damage to property does not include the preservation of money that would not have been lost if not for the alleged malpractice. The Gauthier court further reasoned that it violated public policy in Connecticut to permit successor counsel, entering a case to remedy the alleged malpractice of the predecessor counsel, to be made a party to a legal malpractice action brought against predecessor counsel. The court referred to the public policy in Connecticut requiring attorneys to maintain undivided loyalty and independent
958904.1
judgment for their client. Gauthier at 176. The court found compelling the argument that a lawyer should be able to make decisions for his or her client without being concerned about any personal liability in third-party actions brought by any predecessor counsel. Gauthier at 178. The court also found persuasive the concern that if such a third-party complaint were allowed, successor counsel would be unable to use privileged information to defend him or herself unless the client were willing to waive the privilege. Gauthier at 178. Similarly, in Whitaker v. Erdos & Maddox, No. CV00-0371896S, 2000 Conn. Super. LEXIS 3198, the court granted successor counsel’s motion to strike the apportionment claim brought by predecessor counsel. The Whitaker court followed the same reasoning as the Gauthier court. MASSACHUSETTS In contrast to Connecticut, Massachusetts has joined the majority of jurisdictions in allowing third-party actions seeking contribution to be brought by predecessor counsel against successor counsel. In Maddocks v. Richer, 403 Mass. 592, the Supreme Judicial Court of Massachusetts allowed predecessor counsel to bring a third-party complaint for contribution against successor counsel because, the court reasoned, the alleged negligence of each caused the same injury to the client. The court also held that successor counsel must be disqualified from continuing to represent the plaintiff client because he would be brought into the action as a third-party defendant. Maddocks at 603. NEW YORK In Schauer v. Joyce, et al., 54 N.Y.2d 1 (1981), an attorney who was being sued by a prior client for legal malpractice in connection with a matrimonial matter was permitted to bring a thirdparty claim for contribution against successor counsel who represented the client in the same matter. The relevant question for the Court of Appeals, New York’s highest state court, in determining the viability of the third-party claim for contribution, was not whether the successor counsel owed any duty to predecessor counsel, but instead whether each party owed a duty to the plaintiff client and whether, by breaching their respective duties to the plaintiff, they contributed to her ultimate damages. The third-party complaint for contribution was held to have stated a valid cause of action since predecessor counsel had raised a claim that successor counsel acted as an independent, successive tortfeasor and either had contributed to or aggravated the plaintiff client’s injuries. In Catania v. Lippman, 470 N.Y.S.2d 487 (1983), the Supreme Court of New York, Appellate Division, Third Department affirmed that, when successor counsel brought suit against predecessor counsel for legal malpractice on behalf of his or her client, not only could predecessor counsel seek contribution from successor counsel, but also successor counsel should be disqualified from continuing to represent the plaintiff. In disqualifying successor counsel from continuing to represent the plaintiff, the court reasoned that DR 5-102(A) of the Code of Professional Responsibility mandated that if, after taking on employment as counsel, it becomes apparent that an
958904.1
attorney ought to be called as a witness on behalf of his client, he or she shall withdraw from the trial. Id. RHODE ISLAND The courts in Rhode Island have not yet spoken on the issue of whether predecessor counsel may implead successor counsel into a malpractice claim. OTHER JURISDICTIONS At present, in addition to New York and Massachusetts, at least six states, Illinois, Washington, Maryland, West Virginia, Ohio and Wisconsin allow predecessor counsel to implead successor counsel into a legal malpractice action. See, Goran v. Glieberman, 276 Ill. App.3d 590, 213 Ill.Dec. 426, 659 N.E.2d 56, 61 (1st 1995); Brown v. LaChance, 165 Wis.2d 52, 477 N.W.2d 296, 301-02 (App. 1991), review denied, 479 N.W.2d 173 (Wis. 1991); Pappas v. Holloway, 114 Wash.2d 198, 787 P.2d 30, 36-7 (1990); Parler & Wobber v. Miles & Stockbridge, P.C., 359 Md. 671, 756 A.2d 526 (2000); Costin v. Wick, 1996 Ohio App. LEXIS 233; Sheetz, Inc. v. Bowles Rice McDavid Graff & Love, PLLC, 547 S.E.2d 256 (W.Va. 2001). Beside Connecticut, four states, Minnesota, New Jersey, Pennsylvania and Utah, reject such third-party actions. See, Melrose Floor Co., Inc. v. Lechner, 435 N.W.2d 90, 91-92 (Minn. Ct. App. 1989); Olds v. Donnelly, 150 N.J. 424, 696 A.2d 633, 643 (1997); Mentzer & Rhey, Inc. v. Ferrari, 367 Pa. Super. 123, 532 A.2d 484, 486-87 (1987); Hughes v. Housley, 599 P.2d 1250, 1253-54 (Utah 1979). In conclusion, there is a difference of opinion among courts, including those in the Northeast, regarding the question of whether to permit predecessor counsel to bring an action for contribution or apportionment against successor counsel. When handling or evaluating claims, therefore, it is important to review the relevant case law in each state to make an early determination whether thirdparty claims against successor counsel will be allowed.
958904.1