Whether clients should be permitted to assign legal malpractice actions is a continuing subject of debate. As a general concept, assignment of legal malpractice claims is disfavored. (See Gurski v. Rosenblum and Filan LLC, 276 Conn. 257, 271, 885 A.2d 163, 170 (Conn. 2005) (listing 15 different jurisdictions that do not allow the assignment of legal malpractice claims).) Assignment of legal malpractice claims to a previously adverse litigant is disfavored to an even greater extent than assignments to successors in interest or uninterested third parties. (See Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313 (Tex. App. Ct. 1994); Botma v. Huser, 202 Ariz. 14, 17, 39 P.3d 538 (Ct. App. 2002).) The concern is assignments to previously adverse litigants are “transparent device[s] to replace a judgment-proof, uninsured defendant with a solvent defendant,” as in Zuniga.
Of particular concern is: “To allow [such] assignments would exact high costs: the plaintiff would be able to drive a wedge between the defense attorney and his client by creating a conflict of interest; in time, it would become increasingly risky to represent the underinsured, judgment-proof defendant; and the malpractice case would cause a reversal of the positions taken by each set of lawyers and clients, which would embarrass and demean the legal profession.”
