10-3 Implied Assignments

• Jurisdiction: United States

10-3 Implied Assignments

Contractual arrangements that give up too much control of a possible or actual legal malpractice claim are treated in Florida as void implied assignments.³²

In Weiss v. Leatherberry,³³ Green, the plaintiff in the underlying automobile negligence case, agreed to relinquish her right to execute a judgment against Leather-berry in return for Leatherberry agreeing to pursue a legal malpractice case against his attorney utilizing a lawyer chosen by Green, with all of the malpractice proceeds going to Green. The court found the agreement caused Leatherberry to lose control over the malpractice claim, thereby effectively constituting an assignment.³⁴

Salerno v. Auto Owners Insurance Co.³⁵ relied on Weiss in determining that a stipulation arising from the failure of a law firm to timely accept an offer of settlement in an automobile accident case was a prohibited assignment.³⁶ The court also established parameters if the plaintiff chose to prosecute the suit. The plaintiff would have to keep complete control of the case, be free to choose his own counsel, not be required to provide updates to anyone, and be the recipient of any recovery.³⁷

The agreement in Michael E. Greene, P.A. v. Leasing Associates, Inc.³⁸ was held to be an unlawful assignment and resulted in the overturning of a trial court malpractice judgment against the lawyer.³⁹

In Collectarius Financial, LLC v. Statebridge Co., LLC,⁴⁰ the court acknowledged "that there is no clear, binding authority controlling the issue of whether a law firm can assign a client's legal fee debt to a collection agency to pursue through litigation."⁴¹ After examining various rules of professional conduct dealing with attorney-client confidentiality, as well as Law Office of David J. Stern, P.A. v. Security National Servicing Corp.,⁴² the court concluded: "Protecting attorney-client confidentiality is a reason to refuse to recognize the assignment in this case."⁴³

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Notes:

^[32] In assessing such arrangements, the key is determining the real party in interest. Nova Cas. Co. v. Santa Lucia, 2011 WL 862041 (M.D. Fla. 2011).

^[33] Weiss v. Leatherberry, 863 So. 2d 368 (Fla. 1st Dist. Ct. App. 2003).

^[34] Weiss v. Leatherberry, 863 So. 2d 368, 373 (Fla. 1st Dist. Ct. App. 2003).

^[35] Salerno v. Auto Owners Ins. Co., 2006 WL 2085467 (M.D. Fla. 2006).

^[36] Salerno v. Auto Owners Ins. Co., 2006 WL 2085467, at *6 (M.D. Fla. 2006).

^[37] Salerno v. Auto Owners Ins. Co., 2006 WL 2085467, at *6 (M.D. Fla...