Legal Malpractice

An Amusing Way out of Legal Malpractice Litigation

By (Andrew Lavoott Bluestone)

The California Blog of Appeal discusses this amusing attempt by a target attorney to get out from under a legal malpractice case. Styles v. Mumbert is a California case in which...well, let Greg May describe it:

"You represent the defendant in a lawsuit. You don’t have time to handle his case — indeed, you admit as much on the record — and the court imposes terminating sanctions against your client for failing to respond to discovery. Because of your admission, your client is allowed to obtain new counsel, but new counsel is unsuccessful in getting the sanctions order vacated, and a default judgment of $730,000 is entered aganist your client, who then promptly sues you for malpractice and, while that suit is pending, appeals the default judgment. What do you do, besides give notice to your malpractice carrier?

If you’re the defendant’s first attorney in Styles v. Mumbert, you get the plaintiff in the original case (Styles) to assign her default judgment to you (for some undisclosed consideration), then, represented by another lawyer in your firm, you move the court of appeal to substitute you in as respondent in your former client’s (Mumbert’s) appeal from that judgment. The court of appeal resists the invitation, concluding the opening paragraph of its opinion thus: ”Finding that the proposed substitution violates multiple rules of Professional Conduct as well as the Business and Professions Code, we will deny the motion.”

The absurdity of the possible outcomes! The court says it much better than I could:

If we allowed [attorney] Pagkas to substitute himself as respondent, in place of Styles, on appeal Pakgas would have to argue that the default judgment, for which he may be professionally responsible, should be reversed. He would argue that the appeal should fail, so that he could collect on the default judgment. This is directly contrary to Mumbert’s interest. While a reversal here would be to Pagkas’s absolute benefit in the legal malpractice action, reducing any potential damages for professional negligence owed to Mumbert, Pagkas appears to prefer the prospect of collecting the large default judgment from Mumbert. In fact, if the substitution were allowed, it is conceivable that Pagkas could prevail in both the malpractice action and in this appeal, leaving him with huge windfall at the expense of his former client. Pagkas’s disregard for his ongoing fiduciary duties to his former client in favor of his own personal gain is without precedent.

Unsurprisingly, Mumbert asked for sanctions for having to oppose the motion, and got them. "

Full post as published by New York Attorney Malpractice Blog on July 16, 2008 (boomark / email).