CHAPTER 9 - 9-6 THIRD-PARTY CLAIMS

• Jurisdiction: United States

9-6 Third-Party Claims

9-6:1 Claims Against Successor Counsel

Often, a plaintiff in a legal malpractice action has hired successor counsel whom the defendant attorney seeks to blame for some or all of the plaintiff's damages. Neither the Connecticut Supreme nor the Appellate Courts have ruled on the issue of whether public policy prohibits a former attorney from maintaining a claim against a successor attorney in a legal malpractice action.⁸⁰ There is a split among other jurisdictions on whether such a claim is allowed. Courts are concerned that permitting such a claim will adversely affect the attorney-client relationship and raise issues of potential breaches of the attorney-client privilege.⁸¹ Several Superior Court decisions that have addressed this issue have held that permitting claims for apportionment, contribution, or indemnity against successor counsel would violate public policy.⁸²

In Berman & Sable v. National Loan Investors, L.P.,⁸³ the law firm brought an action against a former client to recover additional fees. In response, the former client predictably counterclaimed for legal malpractice. The law firm moved to implead the successor attorneys. The Superior Court held that the firm could not implead current attorneys in response to the former client's malpractice counterclaim citing public policy arguments that it is unwise for an attorney being sued for malpractice by a former client to be allowed to bring a claim for contribution or indemnity against the successor attorney.

In Shelvin v. Shafran,⁸⁴ the plaintiff commenced an action against the defendant attorney claiming legal malpractice in defendant's representation of the plaintiff in an underlying medical malpractice action. Another attorney took over the handling of the medical malpractice case. The defendant sought to file an apportionment complaint against the successor counsel. The court struck the apportionment complaint on the basis that it violated public policy.

Finally, in Whitaker v. Erdos & Maddox,⁸⁵ the plaintiff former client filed a complaint against the defendant law firm alleging that they were negligent in representing her in her underlying medical malpractice claim in which the court entered a judgment of nonsuit. The defendant law firm asserted an apportionment complaint against the successor attorney. The court granted a motion to strike the apportionment complaint on the grounds that a claim for apportionment of liability by a predecessor attorney against a...