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The California Supreme Court adopted a blanket rule in legal malpractice cases Thursday, refusing to let lawyers sue co-counsel for breaches of fiduciary duty. But it declined to do the same thing in a companion case, holding that lawyers’ suits seeking indemnification of malpractice damages from co-counsel should be decided on a case-by-case basis. The latter ruling prompted Justice Janice Rogers Brown — who authored both opinions — to issue an unusual concurrence to her own ruling, in which she said she would have preferred to adopt a blanket rule. “The case-by-case approach, which we adopt in the majority opinion, may result in more justice for lawyers,” Brown wrote, “but less for the general public, because we will continue to squander scarce judicial resources, at both the trial and appellate level, on these cases.” In the first case, Beck v. Wecht, 02 C.D.O.S. 5812, San Francisco lawyer Daniel Beck sued Ronald Wecht, a partner at San Francisco’s Walkup, Melodia, Kelly & Echeverria, to recover a fee he claims he would have gotten if not for Wecht and attorney L.L. “Mick” McBee, of Plano, Texas. The two had failed to act on General Motors Corp.’s $6 million settlement proposal in a suit involving exploding “side-saddle” gas tanks. The auto manufacturer later won at trial. Last year, San Francisco’s 1st District Court of Appeal ruled against Beck, refusing to recognize a fiduciary duty by one co-counsel toward another. The appeal court did so based on Joseph A. Saunders, P.C. v. Weissburg & Aronson, 74 Cal.App.4th 869, a 1999 2nd District ruling that held such a duty potentially inconsistent with an attorney’s duty to the client. On Thursday, the California Supreme Court unanimously agreed with the appeal court, and in so doing rejected Pollack v. Lytle, 120 Cal.App.3d 931, a 1981 2nd District ruling that recognized a fiduciary duty between co-counsel. “Like the court of appeal in the present case,” Brown wrote, “we agree with Saunders that it would be contrary to public policy to countenance actions based on the theory that co-counsel have a fiduciary duty to protect one another’s prospective interests in a contingency fee.” In the companion case, Musser v. Provencher, 02 C.D.O.S. 5815, San Francisco lawyer Sandra Musser, who’s currently not practicing, sued bankruptcy specialist Douglas Provencher of Santa Rosa, Calif., to recover the $115,000 spent on the settlement, legal fees and deductible in connection with a malpractice suit against her. She claimed Provencher provided bad legal advice, causing her to lose a child-support case and be sued by her client. Last year, the 1st District let Musser’s suit proceed. The California Supreme Court unanimously agreed on Thursday, going against a volume of case law that had previously barred indemnification of malpractice damages. But Justice Brown’s ruling authorized such suits on a case-by-case basis. Musser’s suit passes inspection, Brown wrote, because neither of the public policy considerations barring indemnification — avoiding conflicts of interest between attorney and client, and protecting the confidentiality of their communications — came into play. Musser had waived her attorney-client privilege. “It would be unjust to deny Musser an opportunity to seek indemnity or contribution from Provencher,” Brown wrote, “when Musser has been sued by [her client] for damages allegedly attributable to Provencher’s tortious conduct.” Brown also ruled that Musser could subrogate her malpractice claims to her insurer, Home Insurance Co. In the separate concurrence to her own opinion, Brown worried that allowing indemnification suits to proceed case by case could cause problems for the courts. Determining whether barring indemnification would protect client confidences in a particular case, she said, “is so fact bound that mini-trials will be required, the losing party will always appeal and the resulting appellate decisions will provide little guidance.” Brown also took note of a “puckish footnote” by Justice Miriam Vogel, of the 2nd District, that identified 15 separate appellate rulings on the indemnification issue, with Vogel’s Division One leading the way with four. “The one certainty,” Brown wrote, “is that the adoption of the case-by-case approach will afford other divisions of the court of appeal ample opportunity to overtake Division One of the Second District in the race for the number of published opinions devoted to these questions.” John Drath, a partner at Oakland, Calif.’s Drath, Clifford, Murphy, Wennerholm & Hagen who represented Wecht in the Beck case, said Brown was “accurately predicting” what will happen with indemnity cases, and he said it appears she unsuccessfully lobbied her fellow justices for a bright-line rule. He also said he was pleased by the outcome in his case on fiduciary duties. M. Armon Cooper, the San Francisco solo practitioner who represented Beck, said he disagreed with the court’s ruling in his case. “I think Beck was clearly damaged by the tortious conduct of Wecht in this case,” he said, “and I think it’s an injustice for the court not to allow him to recover just because he’s a lawyer.” Cooper also noted Justice Brown’s comment in Musser about the ruling giving more justice to lawyers, but not necessarily the general public. “Turn that around in our case,” he said, “because they denied the case-by-case approach, which results in less justice for lawyers, and I don’t think it results in more for the general public.”

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