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When it comes to legal malpractice suits, there’s no difference between transactional lawyers and litigators, the California Supreme Court ruled unanimously Monday. “We conclude that, just as in litigation malpractice actions, a plaintiff in a transactional malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result,” Justice Joyce Kennard wrote. The ruling in Viner v. Sweet, 03 C.D.O.S. 5436, will likely be welcome news around the state. Twenty-three California bar associations, law firms and individual attorneys filed amicus curiae briefs with the court, warning that a ruling to the contrary would have exposed transactional lawyers to vastly broader malpractice claims. The decision reverses an appellate ruling that said disgruntled clients didn’t have to go through what’s known as a “trial within a trial” to determine whether they would have obtained a better deal in a business transaction if not for their lawyer’s alleged negligence. In the case decided Monday, Michael and Deborah Raffin Viner had sued their lawyer, Charles Sweet, and the firm he worked for at the time, Washington, D.C.’s Williams & Connolly, for allegedly botching a deal to sell their 12-year-old audio book business. The Viners, veterans of the film and television industries, accused Sweet, now a partner at Honolulu’s Carlsmith Ball, of failing to include seven conditions in an employment termination agreement that they said were “essential and non-negotiable.” In defending the suit, Sweet and his firm argued that the Viners had to prove that, “but for” Sweet’s foul-up, they would have gotten a better outcome. Los Angeles’ Second District Court of Appeal ruled that the give-and-take nature of transactions made that approach impractical or even impossible. But the high court sharply disagreed. “We see nothing distinctive about transactional malpractice,” Justice Kennard wrote, “that would justify a relaxation of, or departure from, the well-established requirement in negligence cases that the plaintiff establish causation by showing either: (1) but for the negligence, the harm would not have occurred, or (2) the negligence was a concurrent independent cause of the harm.” Kennard also rejected the appeal court’s conclusion that litigation is distinct from transactions in that in the former a gain for one party results in a loss for the other, while that’s not necessarily so in a transaction. “Litigation may involve multiple claims and issues arising from complaints and cross-complaints,” she wrote, “and parties in such litigation may prevail on some issues and not others, so that in the end there is no clear winner or loser and no exact correlation between one side’s gains and the other side’s losses.” The decision remands the case back to the appeal court. L.A. lawyer Patricia Glaser, who argued the case for the Viners, said Monday that she was “extremely disappointed” and strongly disagreed that transactional malpractice actions should be analyzed the same as litigation malpractice. “This is a victory for the bar associations and not a victory for the clients,” the Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro partner said. “The court missed the boat, and [the ruling] seems to be very self-protecting of the legal profession and, in our view, inappropriately so.” Mark Helm, a partner in L.A.’s Munger, Tolles & Olson who represented Sweet, called the ruling “a very important decision.” “It’s very easy for a client after the fact to find something that a lawyer should have done differently,” he said, “and this case holds that Monday morning quarterbacking is not enough to state a malpractice claim.” Helm also said the ruling “corrects a misimpression” that the but-for standard was never required in tort cases. “This opinion,” he said, “provides a basis for requesting a but-for instruction in every case.” In a separate ruling Monday, the Supreme Court held unanimously that Code of Civil Procedure � 170.6 does not allow criminal defendants to seek the disqualification of a judge in a remanded case if the sole task left is re-sentencing. The statute allows a disqualification attempt if a new trial is held. “We believe it is clear that a re-sentencing hearing in a criminal case does not constitute a new trial,” Chief Justice Ronald George wrote. “The Penal Code contains its own definition of the term new trial — a definition that � does not encompass a remand for re-sentencing.” The case is Peracchi v. Superior Court, 03 C.D.O.S. 5431.

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