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WA: No Assignment of Legal Malpractice Cause of Action

Kim v. O’Sullivan, 133 Wash. App. 557 (2006)

WA: Underlying Personal Injury Action

Student Contributor: Ben Doyle

Facts: Client was sued by injured party following a bar fight. Client believed that Defendant attorney who was assigned to represent client by insurance company committed malpractice. As a part of the settlement in the underlying action, Client assigned his rights to the malpractice action to the injured party. The malpractice claim was filed and summary judgment was granted in favor of attorney.

Issue: Whether a legal malpractice claim can be assigned and brought by the opposing party to the underlying lawsuit.

Ruling: The appellate court held that the party bringing the action was not the real party in interest in the malpractice action and barred from brining the suit. When the client returned, the court again held dismissal was proper this time because client did not bring sufficient evidence of damages caused by the alleged malpractice.

Quoting Kommavongsa, 149 Wn.2d at 311, 

In sum, we can see no advantage flowing to the legal system or the public that it serves from permitting assignments of malpractice claims to adversaries in the same litigation that gave rise to the alleged malpractice.”

Lesson: The malpractice alleged in this case was that the attorney inadequately conducted discovery and underestimated the strength of his opponent’s case. As a result, a settlement for $200,000 was allowed to expire by attorney. Client found his own counsel and, without consenting attorney, agreed to a settlement in which he consented to a judgment the amount of $3,000,000 to be entered against him provided that his opposition never enforce the judgment against him personally. After client realized that his assignment was not proper, he agreed to take up the case and then assign his judgment, which was permitted because it was not the court’s intention to protect lawyers.

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Posted in: Litigation, Washington