Summary
In Chaffee, the court held that public policy prevented the transfer of a previously unasserted claim for legal malpractice because "the decision as to whether to bring a malpractice action against an attorney is one peculiarly vested in the client."
Summary of this case from Ikuno v. YipOpinion
No. 12830
May 27, 1982
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark County; Merlyn H. Hoyt, Judge.
Rogers, Monsey, Woodbury Berggreen and Douglas G. Crosby, Las Vegas; Ned Good and Ian Herzog, Los Angeles, for Appellant.
Dickerson, Miles Pico, Las Vegas, for Respondent.
OPINION
Appellant has appealed from an order granting respondent's motion for summary judgment and related orders.
In an underlying wrongful death action, appellant obtained a judgment against Airline Training Academy (ATA). Respondent originally represented both ATA and its insurer, Airway Underwriters. Alleging lack of cooperation by ATA, respondent withdrew as counsel for ATA. Thereafter, on behalf of Airway Underwriters, he obtained a default judgment against ATA, resulting in forfeiture of insurance coverage. In the instant action, appellant has sued respondent, ATA's former attorney, for malpractice in his dealings with ATA.
Appellant contends, inter alia, that the trial court erred in its determination that a lack of privity with the original attorney-client relationship precluded her suing her opposing party's attorney (respondent) for malpractice. Appellant claims that she acquired the cause of action against respondent by levy and execution sale of ATA's property.
Here, however, the transferred interest involves a previously unasserted claim. As a matter of public policy, we cannot permit enforcement of a legal malpractice action which has been transferred by assignment or by levy and execution sale, but which was never pursued by the original client. See Goodley v. Wank Wank, Inc., 133 Cal.Rptr. 83 (Cal.App. 1976); Christison v. Jones, 405 N.E.2d 8 (Ill.App. 1980). The decision as to whether to bring a malpractice action against an attorney is one peculiarly vested in the client. See Christison, supra at 11. We reserve opinion on the question as to whether previously asserted legal malpractice actions are transferable. See Goodley, supra; Collins v. Fitzwater, 560 P.2d 1074 (Ore. 1977).
The public policy issue is dispositive of this appeal. Therefore, we need not consider appellant's remaining contentions.
We express no opinion regarding the propriety of respondent's conduct.
The summary judgment is affirmed.