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They weren’t as entertaining as Mad magazine’s Spy vs. Spy, but two lawyer vs. lawyer cases heard by the California Supreme Court on Wednesday could have a big impact on the legal profession. At issue in both cases is whether attorneys can bring malpractice suits against co-counsel for mishandling a suit or providing bad legal advice. The supreme court justices didn’t tip their hands Wednesday as they lightly grilled the attorneys on both sides of each case. Tackling one lawyer’s assertion that allowing an attorney to seek indemnity from co-counsel over a botched case could adversely affect loyalty to the common client’s interests, Justice Kathryn Mickle Werdegar said she didn’t see where a division of loyalty would come into play in such a setting. But on the other hand, Justice Ming Chin asked another lawyer whether it wouldn’t interfere with the attorney-client relationship if a lawyer was constantly “looking over his shoulder” for fear of having a fiduciary obligation to his co-counsel. “Doesn’t that create a problem?” he asked. In Musser v. Provencher, S099938, San Francisco’s 1st District Court of Appeal ruled in July that Marin County lawyer Sandra Musser could sue bankruptcy specialist Douglas Provencher for indemnity of an $85,000 settlement paid by her insurer, $20,000 in waived legal fees and a $10,000 deductible on her malpractice insurance. Musser says Provencher provided bad advice that caused her to lose a spousal- and child-support case and then be sued for malpractice by the client, Pam Scott. In American Equity Insurance Co. v. Beck, S099665, a different division of the 1st District held in June that San Francisco lawyer Daniel Beck could not sue Ronald Wecht, of San Francisco’s Walkup, Melodia, Kelly & Echeverria, to recover the fee he would have received in a failed settlement because the two men had no fiduciary relationship. Beck was upset because Wecht and Texas lawyer L.L. McBee rejected a $6 million settlement offer by General Motors Corp. in a car-crash case that eventually ended in a trial victory by the auto manufacturer. On Wednesday, Provencher’s lawyer, Noreen Evans of Santa Rosa, Calif., and Wecht’s attorney, John Drath, a partner in Oakland, Calif.’s Drath, Clifford, Murphy, Wennerholm & Hagen, urged the supreme court to adopt a bright-line rule closing the door to malpractice suits by attorneys that have a falling out with co-counsel. By making that exception, Drath said, “you’re starting us down the proverbial slippery slope.” Evans, meanwhile, said lawyer vs. lawyer malpractice suits shouldn’t be allowed because an attorney has a duty to the client, not to co-counsel. “The proper focus is on the relationship between the attorney and the client,” she said. “The relationship between the counsel is secondary.” Justice Marvin Baxter queried, though, whether a blameless lawyer could be held liable by the client on the basis of co-counsel’s errors. Evans said no. “Where is the indemnity then?” Baxter asked. “Where does the right to indemnity come from?” When their turns came, James Murphy, who represents Musser, and M. Armon Cooper, who represents Beck, advised the justices to render a ruling that looks at such malpractice suits on a case-by-case basis. To do otherwise, said Murphy, a partner in San Francisco’s Murphy, Pearson, Bradley & Feeney, would be “unfair, unjust and unwise.” Murphy rejected his opponent’s arguments that allowing malpractice suits between co-counsel would hurt the attorney-client privilege by disclosing confidential information. That’s not the case here, he said. “The attorney-client relationship between Mr. Provencher and Ms. Scott,” Murphy said, “had ended by the time Ms. Musser was sued.” For his part, Cooper argued that while his client, Beck, had a duty to his own clients in the General Motors suit, he and Wecht also had a contractual duty to each other. “Mr. Beck should not be denied his right to collect his fee just because he’s a lawyer,” Cooper said. “This is a tort. His claim does arise out of his co-counsel’s duty to the client, but it’s a separate duty.” Justice Baxter wondered aloud, though, if things couldn’t get out of hand if the court agreed with Cooper and Murphy. For example, he speculated, wouldn’t one lawyer, to avoid liability, automatically tell a client that it might be wise to accept a settlement if his co-counsel had already recommended that result. “Where does it end?” Baxter asked. Los Angeles lawyer Harry Chamberlain II, arguing on behalf of the California Society of Certified Public Accountants, which had signed on as an amicus curiae, sided with Murphy and Cooper. “Duty can arise by contract,” he said. “Duty can arise when lawyers hire other lawyers.” Chief Justice Ronald George and Justice Carlos Moreno were the only justices who asked no questions. They remained silent throughout both arguments. Decisions in the cases are expected within 90 days.

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