Your duty is to the client, not cocounsel!
On Thursday of this week the Washington State Supreme Court issued an opinion on a case of interest to the legal profession. The case was Mazon v. Krafchick (2006). Mr. Mazon and Mr. Krafchick were two attorneys who partnered up on an electrocution case. They divided up their responsibilities. Mr. Mazon was to draft the complaint and Mr. Krafchick was to file and serve the same. Mr. Mazon drafted the complaint and Mr. Krafchick filed the suit. It was on the eve of the statute of limitations. Once the suit was filed, under Washington rules, the statute of limitations would have been tolled 90 days for service of process. Unfortunately Mr. Krafchick served the suit one day past the statute of limitations and of course the case was subsequently dismissed. Mr. Krafchick’s paralegal was in charge of seeing that the complaint was served and apparently told Mr. Krafchick that it had been served timely when in actuality it had not.
The client sued both attorneys for malpractice. The suit was settled by the attorney’s malpractice carrier which happened to be the same company for both attorneys. The total payout was $1.3 million dollars of which $1,250,000 was assigned to Mr. Krafchick and $50,000 was assigned to Mr. Mazon.
Mr. Mazon then sued Mr. Krafchick for the lost contingency fee on the case ($325,000), his insurance deductible and the $50,000. The Supreme Court upheld the trial court’s dismissal of the case on summary judgment.
The Supreme Court ruled that the attorneys had no duty to each other only to the client. They stated:
Thus, the court rejected Mazon's claim on the basis that recovering damages for a prospective contingency fee lost through a misfeasance of cocounsel assumes the duty to conduct the lawsuit in a manner that does not diminish or eliminate the fee each expects to collect. We agree a duty to protect prospective fees would create potential impermissible conflicts with the duty of loyalty the attorneys owe their clients.
As cocounsel, both attorneys owe an undivided duty of loyalty to the client. The decisions about how to pursue a case must be based on the client's best inerest, not the attorneys'. The undivided duty of loyalty means that each attorney owes a duty to pursue the case in the client's best interest, even if that means not completing the case and forgoing a potential contingency fee.
