Gurski v. Rosenblum and Filan, LLC

Opinion

The dispositive issue in this appeal is whether a client may assign a legal malpractice claim or the proceeds from such a claim to the client’s adversary in the underlying litigation. The defendants, the law firm of Rosenblum and Filan, LLC, and one of its principals, James Rosenblum (law firm), appeal from the judgment of the trial court, rendered in accordance with a jury verdict in favor of the plaintiff, Walter Gurski. 1 We conclude that an assignment of a legal malpractice claim or the proceeds from such a claim to an adversary in the same litigation that gave rise to the *260 alleged malpractice is against public policy and thereby unenforceable. Accordingly, we reverse the judgment.

The record discloses the following facts and procedural history. On or about May 12, 1994, Gurski filed a voluntary petition for bankruptcy under chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 1101 et seq. The United States Bankruptcy Court for the District of Connecticut issued an automatic stay of postpetition actions against Gurski’s property pursuant to 11 U.S.C. § 362 (a). Thereafter, in 1997, Susan Lee commenced an action against Gurski, a podiatrist, for malpractice, alleging that, as a result of Gurski’s negligent and careless treatment of her feet in 1995 and 1996, she was permanently injured and required further treatment and corrective surgery. 2 Gurski notified his insurance carrier, AIG Insurance Company (AIG), which retained the law firm to represent Gurski. Subsequently, by letter dated December 15,1997, AIG informed Gurski that the action filed by Lee was not covered under his policy and, accordingly, that it no longer would provide a defense or indemnification. The law firm thereafter informed Gurski in a letter dated December 17, 1997, and in subsequent oral communications that, because he had no coverage under the AIG policy, he would need to retain other counsel. In a letter dated July 6, 1998, the law firm notified Gurski that it had filed a motion to withdraw its appearance, that he should plan to attend a court hearing on that motion, and that he needed to retain new counsel. On July 9, 1998, the law firm notified Gurski that the court had scheduled a hearing for settlement discussions in Lee’s action on July 22, 1998, and that he should appear at that time. *261 The hearing went forwar d and, because neither Gurski nor the law firm appeared, the court entered a default judgment against Gurski. In a letter dated August 11, 1998, the law firm notified Gurski of the default judgment, advised him of another hearing scheduled for August 27,1998, and counseled him to attend that hearing. The law firm repeated therein that it did not represent him and that the court likely would grant its motion to withdraw shortly. By letter dated October 16, 1998, the law firm informed Gurski that the motion to withdraw its appearance was scheduled for October 19, 1998. The trial court, Holzberg, J., granted that motion on October 20, 1998. There is nothing in the record reflecting that Gurski was notified of that decision. 3

On November 16, 1998, Gurski received a certificate of closed pleadings notifying him that, on November 12, 1998, Lee had claimed the malpractice case to a hearing in damages. Seeking advice, Gurski forwarded that document to another law firm, O’Donnell, McDonald and Cregeen, LLC (O’Donnell), which responded on December 8, 1998, notifying Gurski that the trial court had granted the law firm’s motion to withdraw on October 20, 1998, and advising him to seek other counsel as soon as possible. Additionally, O’Donnell advised Gurski that, because the default judgment in favor of Lee had entered during the period before the Bankruptcy Court granted Lee’s motion for relief from the stay; see footnote 2 of this opinion; the court would likely open the default judgment. Despite his efforts to retain counsel, Gurski was unsuccessful, and, because he had not entered a pro se appearance, he was not notified of the December 21, 1998 hearing in damages at which judgment entered against him for $152,000. In January, 1999, after judgment had been rendered for Lee, Gurski retained counsel, who thereafter moved to *262 open the judgment. The trial court denied the motion to open, concluding that “[Gurski] was fully advised of the entry of the default, the hearing in damages and the entry of judgment. Having failed to take reasonable steps to respond to the notice of these proceedings and having failed to demonstrate that he failed to appear because of mistake, accident or other reasonable [cause], the motion to [open] is denied.”

Under bankruptcy law, the judgment in favor of Lee was considered an administrative claim and was not subject to being discharged in Gurski’s pending bankruptcy proceedings. Gurski’s assets were insufficient to pay both the amount of the judgment in favor of Lee and the payments required under the plan of reorganization that Gurski had filed in the Bankruptcy Court. As a consequence, on October 15, 1999, following lengthy settlement negotiations with Lee, Gurski filed a motion to compromise with the Bankruptcy Court regarding the judgment against him. In an attempt to move his chapter 11 case to confirmation, and because he did not have sufficient funds to liquidate Lee’s claim, Gurski proposed a compromise predicated on a legal malpractice claim his bankruptcy estate held against the law firm. Lee agreed, dependent upon specific conditions, to compromise her claim against the estate. 4 On Decem *263 ber 21, 1999, the Bankruptcy Court granted the motion to compromise, subject to the following orders: “(1) [Gurski] may compromise the claim against the [bankruptcy] estate held by [Lee] by assigning to her the estate’s interest in a certain legal malpractice claim it holds against the [l]aw [f]irm ... (2) [Gurski] may also grant [Lee] a security interest in said malpractice claim up to the maximum amount of $152,000.00 . . . (3) [Lee’s] claim against [Gurski] is limited solely and exclusively to any recovery which may be obtained in the malpractice claim up to $152,000.00 and any other claim is hereby ordered expunged ... (4) [t]he estate is authorized to retain special counsel to prosecute the malpractice claim on a one-third contingency fee basis . . . [and] (5) [Lee’s] right to recovery is subject to special counsel’s claim for attorney’s fees and expenses, all of which shall be submitted to this [c]ourt on appropriate application, notice and hearing.” These conditions, in conjunction with the terms set forth in Gurski’s motion to compromise; see footnote 4 of this opinion; constitute the terms of the assignment at issue in this appeal.

In accordance with his obligation under the compromise, Gurski commenced the present action against the law firm, alleging that its negligence and breach of contract were a proximate cause of his injury—the $152,000 judgment, plus interest and costs expended in an effort to open the judgment. The law firm filed several special defenses, including a challenge to the assignment as violative of public policy. The law firm also filed a motion in limine seeking to exclude evidence of the assignment as irrelevant and prejudicial. The trial court, Tobin, J., conditionally granted the motion. The legal malpractice action was tried to a jury. At the conclusion of Gurski’s case, the law firm moved for a directed verdict, challenging, inter alia, the enforceability of the assignment. In denying the motion, the trial *264 court noted that, up to that point in the trial, there had been no evidence of such an assignment. At the conclusion of the law firm’s case, the parties agreed by stipulation that the issue of the assignment would be reserved for decision by the court. Accordingly, pursuant to that agreement, the jury was not told of the assignment.

The jury concluded that Gurski had not breached the standard of care when treating Lee and that the law firm had breached the standard of care when representing Gurski. Accordingly, it returned a verdict in favor of Gurski for $220,318, which included $136,800 in economic damages and $83,518 in interest. Although the only evidence of damages offered during the trial was a judgment against Gurski in the amount of $152,000, the jury determined that the gross economic damages were $177,000, which they reduced by $25,000 based on the estimated costs that Gurski, who was uninsured, would have incurred in defending the underlying medical malpractice action. The jury further reduced the award by 10 percent for Gurski’s comparative negligence, resulting in the final award of economic damages of $136,800.

The law firm filed a motion to set aside the verdict and, thereafter, a motion for judgment notwithstanding the verdict, claiming, inter alia, that, as a matter of public policy, it is improper for a party to assign a legal malpractice claim to an adversarial party in the underlying litigation. Therefore, according to the law firm, the verdict on the malpractice claim should not be enforced. In a comprehensive opinion, the trial court recognized and followed the majority of jurisdictions holding that legal malpractice claims are considered personal torts that may not be assigned. The trial court then identified a distinction recognized by some jurisdictions between an assignment of the underlying claim and an assignment of the proceeds from that claim. *265 Following that distinction, the trial court concluded that Connecticut’s public policy does not prohibit the assignment of the proceeds, even when it would prohibit the assignment of the underlying action itself. Accordingly, the trial court denied both the motion to set aside the verdict and the motion for judgment notwithstanding the verdict.

The law firm also filed a motion for remittitur, which the trial court granted in part. Specifically, the court reduced the gross damages to $114,300 because the only evidence of damages was Lee’s judgment in the amount of $152,000. The court also reduced the jury’s award of interest to simple interest of $54,644.79. Gurski conditionally agreed to accept the remittitur subject to the law film’s agreement that if it were to appeal the verdict, he would be permitted to appeal the remittitur. This appeal and cross appeal followed. 5

The law firm claims, inter alia, that the trial court improperly denied its motion for a directed verdict and its motion for judgment notwithstanding the verdict because: (1) Gurski’s action against the law firm had been an invalid assignment of a legal malpractice action and thus void as against public policy; (2) Gurski had failed to present expert testimony that the law firm’s breach of the standard of care proximately caused his damages; and (3) Gurski had not sustained any damages as a result of the law firm’s conduct in that he was not personally liable to Lee for the $152,000 judgment against him. 6 We conclude that neither a legal malprac *266 tice claim nor the proceeds from such a claim can be assigned to an adversary in the same litigation that gave rise to the alleged malpractice, and we reverse the judgment accordingly. 7

We first note the standard of review we apply to this issue. The question of whether an assignment is barred as a matter of public policy is an issue of law. See Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997) (question of whether challenged discharge violates public policy is question of law). Accordingly, our review is plenary. Prescott v. Meriden, 273 Conn. 759, 764, 873 A.2d 175 (2005).

In deciding this question, we begin with certain general principles that typically guide our inquiry as to the issue of assignability. In Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 267-68, 757 A.2d 526 (2000), we recognized, with respect to assignment of contract claims, “the modem approach to contracts rejecting] traditional common-law restrictions on the alienability of contract rights in favor of free assignability of contracts. See 3 Restatement (Second), Contracts § 317, p. 15 (1981) ([a] contractual right can be assigned); J. Murray, Jr., Contracts (3d Ed. 1990) (the modem view is that contract rights should be freely assignable); 3 E. Farnsworth, Contracts (2d Ed. 1998) § 11.2, p. 61 Qt]oday most contract rights are freely transferable). Common-law restrictions on assignment were abandoned when courts recognized the necessity of permitting the transfer of contract rights. The force [s] of human convenience and business practice [were] too strong for the common-law doctrine that [intangible contract rights] are not assignable. ... J. Murray, Jr., supra, § 135, p. 791.” (Internal quotation marks omitted.)

*267 We have taken a contrary position, however, with respect to whether a tort claim can be assigned, at least when the claim is based on personal injury. In Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 384, 698 A.2d 859 (1997), although we ultimately concluded that the action at issue was a contract action rather than a tort action, we acknowledged certain well settled principles as to such assignments: “Under common law a cause of action for personal injuries cannot be assigned, and in the absence of a statutory provision to the contrary a right of action for personal injuries resulting from negligence is not assignable before judgment. ... It seems that few legal principles are as well settled, and as universally agreed upon, as the rule that the common law does not permit assignments of causes of action to recover for personal injuries. . . . The rule was early recognized in Connecticut. See Whitaker v. Gavit, 18 Conn. 522, 526 [1847]. The reasons underlying the rule have been variously stated: unscrupulous interlopers and litigious persons were to be discouraged from purchasing claims for pain and suffering and prosecuting them in court as assignees; actions for injuries that in the absence of statute did not survive the death of the victim were deemed too personal in nature to be assignable; a tort-feasor was not to be held liable to a party unharmed by him; and excessive litigation was thought to be reduced.” (Citations omitted; internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., supra, 382-83; accord Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 370, 672 A.2d 939 (1996) (noting “long-standing rule that personal injury actions may not be assigned”).

Because an action for legal malpractice can be pleaded either in contract or in tort; Krawczyk v. Stingle, 208 Conn. 239, 245, 543 A.2d 733 (1988); neither Dodd nor Rumbin, nor their labels, are helpful in the *268 present case. 8 Therefore, rather than strain to fit each legal malpractice claim into a category often determined by counsel based on concerns not relevant to the inquiry at hand, we think the better approach is to resolve the issue uniformly on the basis of public policy. See Picadilly, Inc. v. Raikos, 582 N.E.2d 338, 341 (Ind. 1991) (noting that several jurisdictions have recognized that legal malpractice could be characterized as either assignable contract actions or nonassignable personal injury actions and instead have determined issue on basis of public policy).

Although this appeal raises an issue of first impression in Connecticut, many other jurisdictions have considered whether a legal malpractice claim may be assigned. A majority of those jurisdictions have concluded that legal malpractice claims are not assignable based on several overlapping public policy considerations. 9 Many of those courts discuss the unique and *269 personal nature of the relationship between attorney and client and the need to preserve the sanctity of that relationship as a reason for prohibiting the assignment. See, e.g., Schroeder v. Hudgins, 142 Ariz. 395, 399, 690 P.2d 114 (App. 1984) (assignment of legal malpractice claims barred, citing “uniquely personal” relationship between attorney and client); Goodley v. Wank & Wank, Inc., 62 Cal. App. 3d 389, 397, 133 Cal. Rptr. 83 (1976) (citing “unique quality of legal services, the personal nature of the attorney’s duty to the client and the confidentiality of the attorney-client relationship that invoke public policy considerations in our conclusion that malpractice claims should not be subject to assignment”); Roberts v. Holland & Hart, 857 P.2d 492, 495 (Colo. App.), cert. denied, 1993 Colo. LEXIS 728 (1993) (“the assignment of legal malpractice claims involve matters of personal trust and personal service and do not lend themselves to assignability because permitting the transfer of such claims would undermine the important relationship between an attorney and client”); Christison v. Jones, 83 Ill. App. 3d 334, 338, 405 N.E.2d 8 (1980) (prohibiting assignment due to “the personal nature of the [attorney-client] relationship and the duty imposed upon the attorney, coupled with public policy considerations surrounding that relationship”); Joos v. Drillock, 127 Mich. App. 99, 105, 338 N.W.2d 736 (1983) (citing “personal nature of the attorney-client relationship” and other public policy concerns), appeal denied, 419 Mich. 935 (1984); Earth Science Laboratories v. *270 Adkins & Wondra, P.C., 246 Neb. 798, 801-802, 523 N.W.2d 254 (1994) (refusing to permit assignment because of “personal nature and confidentiality involved in the attorney-client relationship”); Delaware CWC Liquidation Corp. v. Martin, 213 W. Va. 617, 621-23, 584 S.E.2d 473 (2003) (“[t]o permit the assignment of a claim that is firmly rooted in the highly personal attorney-client relationship would denigrate both the legal profession and the justice system”).

In that same vein, courts also have pointed to the incompatibility of the assignment and the attorney’s duty of loyalty and confidentiality in rejecting assignments of legal malpractice claims. See, e.g., Kiley v. Jennings, Strouss & Salmon, 187 Ariz. 136, 140, 927 P.2d 796 (App. 1996) (such assignments would negate attorney’s fiduciary and ethical duty to client because assignee is not client); Goodley v. Wank & Wank, Inc., supra, 62 Cal. App. 3d 397 (to allow such assignments would “embarrass the attorney-client relationship and imperil the sanctity of the highly confidential and fiduciary relationship existing between attorney and client”); Picadilly, Inc. v. Raikos, supra, 582 N.E.2d 342 (same); Wagener v. McDonald, 509 N.W.2d 188, 191 (Minn. App. 1993) (allowing such assignments “would be incompatible with the attorney’s duty to act loyally towards the client . . . [and] to maintain confidentiality” [citation omitted]).

Courts also have cautioned that permitting the assignment of legal malpractice claims would encourage the commercialization of such claims and in turn spawn increased and unwarranted malpractice actions. See, e.g., Goodley v. Wank & Wank, Inc., supra, 62 Cal. App. 3d 397 (“The assignment of such claims could relegate the legal malpractice action to the market place and convert it to a commodity to be exploited and transferred to economic bidders who have never had a professional relationship with the attorney and to whom *271 the attorney has never owed a legal duty, and who have never had any prior connection with the assignor or his rights. The commercial aspect of assignability of choses in action arising out of legal malpractice is rife with probabilities that could only debase the legal profession. The almost certain end result of merchandizing such causes of action is the lucrative business of factoring malpractice claims which would encourage unjustified lawsuits against members of the legal profession, generate an increase in legal malpractice litigation, [and] promote champerty . . . Wagener v. McDonald, supra, 509 N.W.2d 191-93 (quoting “commodity” concerns raised by California court in Goodley); White v. Auto Club Inter-Ins. Exchange, 984 S.W.2d 156, 160 (Mo. App. 1998) (agreeing with this concern as articulated by California court in Goodley).

In rejecting the assignment of a legal malpractice claim as against public policy, courts also have expressed concern that allowing an assignment would make attorneys hesitant to represent insolvent, underinsured or judgment proof defendants for fear that the malpractice claims would be used as tender. See, e.g., Botma v. Huser, 202 Ariz. 14, 17, 39 P.3d 538 (App. 2002) (“[S]uch assignments would enable a plaintiff ‘to drive a wedge between the defense attorney and his client by creating a conflict of interest’ with the result that, ‘in time, it would become increasingly risky to represent the underinsured, judgment-proof defendant. ’ [Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 317 (Tex. App. 1994)]. . . . Because ‘[a] plaintiff who is injured by an uninsured, insolvent defendant has every incentive to look elsewhere for a source of funding,’ the plaintiff might well ‘make a deal [with the defendant] and focus on the defense lawyer’ for monetary recovery if malpractice assignments were allowed.”); Goodley v. Wank & Wank, Inc., supra, 62 Cal. App. 3d 397 (“the ever present threat of assignment and the possibility *272 that ultimately the attorney may be confronted with the necessity of defending himself against the assignee of an irresponsible client who, because of dissatisfaction with legal services rendered and out of resentment and/ or for monetary gain, has discounted a purported claim for malpractice by assigning the same, would most surely result in a selective process for carefully choosing clients thereby rendering a disservice to the public and the profession”).

The final consideration cited by several jurisdictions barring assignment of legal malpractice claims pertains specifically to an assignment of such a claim to the adverse party in the underlying action and the potential for a reversal of roles that could undermine the legitimacy of the malpractice judgment. See, e.g., Kracht v. Perrin, Gartland & Doyle, 219 Cal. App. 3d 1019, 1024-25, 268 Cal. Rptr. 637 (1990) (“[A] malpractice suit filed by the former adversary is ‘fraught with illogic’ . . . and unseemly arguments: In the former lawsuit [the plaintiff] judicially averred and proved she was entitled to recover against [judgment debtor]; but in the [subsequent] malpractice lawsuit [the plaintiff] must judicially aver that, but for [the] attorney’s negligence, she was not entitled to have recovered against [the judgment debtor]. Reduced to its essence, [the plaintiffs] argument in the malpractice action is ‘To the extent I was not entitled to recover, I am now entitled to recover.’ ” [Citation omitted.]); Picadilly, Inc. v. Raikos, supra, 582 N.E.2d 344-45 (“Our decision to bar the assignment of these claims is also grounded on a highly practical consideration: the trial of this assigned malpractice claim would feature a public and disreputable role reversal. The mechanics of trying this case would magnify the least attractive aspects of the legal system. . . . In [the malpractice action], [the assignee] and his lawyer . . . must necessarily bear the burden of proving a proposition directly contrary to the proposition they *273 successfully proved in [the underlying personal injury action]. They now assert that it was [the assignor’s] attorneys, and not [the assignor’s conduct], that led the juiy to award $150,000 in punitive damages. Because of the unique nature of the trial within a trial, [the assignee’s] change in position would be obvious to all the jurors hearing the evidence in [the malpractice action]. They would rightly leave the courtroom with less regard for the law and the legal profession than they had when they entered.” [Citations omitted.]); Freeman v. Basso, 128 S.W.3d 138, 142 (Mo. App. 2004) (“Here, we are faced with a situation in which the parties attempting to bring a claim for legal malpractice are the very parties who benefited from that malpractice [assuming that it occurred] during a previous stage of this litigation. The Missouri rule against assignment was created precisely so as to prevent this type of counterintuitive claim.”); see also Alcman Services Corp. v. Samuel H. Bullock, P.C., 925 F. Sup. 252, 256-58 (D.N.J. 1996) (barri ng assignment on grounds of judicial estoppel and public policy, relying on court’s reasoning in Zuniga v. Groce, Locke & Hebdon, supra, 878 S.W.2d 318, discussed herein), aff'd, 124 F.3d 185 (3d Cir. 1997). Several of these courts have noted that such assignments create an opportunity and incentive for collusion. See, e.g., Coffey v. Jefferson County Board of Education, 756 S.W.2d 155, 156-57 (Ky. App. 1988) (principally rejecting assignment because facts suggested collusion between assignor and assignee); Wagener v. McDonald, supra, 509 N.W.2d 191 (noting risk of collusion in assignment to adverse party in underlying action).

In examining all of the aforementioned considerations, we are not persuaded that every voluntary assignment of a legal malpractice action should be barred as a matter of law. 10 Indeed, there is a significant minority *274 view that rejects a per se bar on assignments, questioning the rationale of some of the public policy considerations cited by the majority view and favoring instead a case-by-case determination when meritorious public policy concerns actually are implicated. See Richter v. Analex Corp., 940 F. Sup. 353, 356-58 (D.D.C. 1996) (concluding that assignment not barred under facts of case when successor company asserted malpractice as counterclaim against predecessor company’s counsel; determining that no policy concerns implicated because claim sold to uninterested party and purely pecuniary harm at issue); Thurston v. Continental Casualty Co., 567 A.2d 922, 923 (Me. 1989) (An assignment was permitted under the specific facts of the case wherein the defendant in the underlying action assigned to the plaintiff a claim against the defendant’s insurer and the insurer’s attorney for failure to defend or settle; the court reasoned that the policy concern about creating a commercial market for claims was inapplicable because “this assignee has an intimate connection with the underlying lawsuit” and rejecting as unpersuasive other policy concerns: “A legal malpractice claim is not for personal injury, but for economic harm. . . . The argument that legal services are personal and involve confidential attorney-client relationships does not justify preventing a client . . . from realizing the value of its malpractice claim in what may be the most efficient *275 way possible, namely, its assignment to someone else with a clear interest in the claim who also has the time, energy and resources to bring the suit.” [Citations omitted.]); New Hampshire Ins. Co. v. McCann, 429 Mass. 202, 209-12, 707 N.E.2d 332 (1999) (stating that some concerns cited are “farfetched”; rejecting, inter alia, concern about disclosure of confidential information on ground that client assignor knowingly waives confidentiality by making assignment and concern about increased litigation on ground that there is no evidence of such increases); Chaffee v. Smith, 98 Nev. 222, 223-24, 645 P.2d 966 (1982) (assignment of previously unasserted claim barred because decision whether to bring such action is one “peculiarly vested” in client, but leaving open question of whether assignment is permitted if malpractice action already has been initiated); Greevy v. Becker, Isserlis, Sullivan & Kurtz, 240 App. Div. 2d 539, 541, 658 N.Y.S.2d 693 (1997) (assignment to plaintiff in underlying personal injury action not barred as contrary to public policy); Gregory v. Lovlien, 174 Or. App. 483, 488, 26 P.3d 180 (noting that legal malpractice action is tort but typically is based on purely economic loss), rev. denied, 333 Or. 74, 36 P.3d 974 (2001); Hedlund Mfg. Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 525-26, 539 A.2d 357 (1988) (The court concluded that legal malpractice action involves a pecuniary interest and, thus, was not barred under the rule precluding the assignment of a personal injury claim, and rejected the public policy argument that the attorney-client relationship must be protected: “We will not allow the concept of the attorney-client relationship to be used as a shield by an attorney to protect him or her from the consequences of legal malpractice. Where the attorney has caused harm to his or her client, there is no relationship that remains to be protected.”); Cerberus Partners, L.P. v. Gadsby & Hannah, 728 A.2d 1057, 1059-61 (R.I. 1999) (questioning policy concerns *276 generally and concluding that assignment not barred under specific facts of case, where commercial loan agreement was assigned and assignee brought malpractice action against attorney who represented original lender in commercial loan transaction; contrasting majority of cases barring assignment wherein legal malpractice claim is transferred to person without any other rights or obligations being transferred along with it); Kommavongsa v. Haskell, 149 Wash. 2d 288, 291, 67 P.3d 1068 (2003) (questioning validity of policy arguments barring all assignments but finding persuasive policy arguments regarding assignment to party in underlying action); see also Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627, 633 (Tex. App. 2000) (recognizing validity of some of policy arguments but allowing assignments in certain situations).

Notably, however, of those jurisdictions that permit the assignment of a legal malpractice claim on a case-by-case basis, two jurisdictions, Texas and Washington, preclude assignment of legal malpractice actions when, as here, the assignment is to an adverse party in the underlying action. 11 See Tate v. Goins, Underkofler, Crawford & Langdon, supra, 24 S.W.3d 633 (noting “evils” of assignment to party in underlying proceedings); Kommavongsa v. Haskell, supra, 149 Wash. 2d 307 (The court concluded that many policy concerns are overstated but determined “that permitting the assignment of legal malpractice claims to an adversary in the same litigation that gave rise to the legal malpractice claim ought to be prohibited because of the opportunity and incentive for collusion in stipulating to damages in exchange for a covenant not to execute judgment in the underlying litigation .... [T]he ‘trial *277 within a trial’ that necessarily characterizes most legal malpractice claims arising from the same litigation that gave rise to the malpractice claim would lead to abrupt and shameless shift of positions that would give prominence [and substance] to the perception that lawyers will take any position, depending upon where the money lies, and that litigation is a mere game and not a search for truth, thereby demeaning the legal profession . . . .”); see also Weiss v. Leatherberry, 863 So. 2d 368, 371 (Fla. App. 2003) (barring assignment to adversary in underlying litigation solely on ground that injury is personal to client and, thus, claim can be asserted only by client, but facts reflect that malpractice claim arose from settlement and no risk of inconsistent positions); Otis v. Arbella Mutual Ins. Co., 443 Mass. 634, 824 N.E.2d 23 (2005) (barring assignment under doctrine of judicial estoppel where assignee was adverse party in underlying action and took inconsistent positions); New Hampshire Ins. Co. v. McCann, supra, 429 Mass. 211 (not barring assignment but noting that risk of inconsistent position was not implicated in this case because merits of underlying action were immaterial to