November 29, 2006
by Mike Frisch
The Supreme Court of Washington has adopted a "bright-line rule that no duties exist between co-counsel that would allow recovery for lost or reduced prospective fees." The court expressed concern that such a cause of action would impair the duty of loyalty that co-counsel jointly owe to the client. The opinion is reported here.
The underlying case involved a worker who had been electrocuted when a drilling company drilled into a buried electric line. Client hired Lawyer Mazon, who brought in Lawyer Krafchick, who had "special expertise" in such cases. Mazon drafted the complaint; Krafchick filed it. Krafchick's paralegal was directed to effect service but failed to do so, despite assuring Krafchick that service was obtained. As a result, the complaint was dismissed and the statute of limitation had run.
Client sued both lawyers and the case was settled for an amount in excess of a million dollars. Mazon then sued Krafchick, seeking recovery of the expected fee, advanced costs, his insurance deductible and the payment made on his behalf in the settlement. The Supreme Court found no basis for claims of co-counsel that are jointly liable to a client against each other.
The lesson: choose co-counsel as carefully as you would a partner. You may be stuck with co-counsel's errors without legal recourse.
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