Hancock's second proposed instruction stated: "A lawyer cannot accept any professional duty that creates a risk that the lawyer will breach a fiduciary duty to a client." Hancock argues that this proposed instruction was taken from Mazon v. Krafchick, 158 Wn.2d 440, 448-49, 144 P.3d 1168 (2006). But in Mazon, the court addressed the narrow issue of whether one attorney may sue his co-counsel for breach of fiduciary duty to recover a prospective fee that the attorney lost as a result of his cocounsel's professional negligence.
We think not. The better approach, we conclude, is a bright-line rule refusing to recognize such a fiduciary duty."); Mazon v. Krafchick, 144 P.3d 1168, 1171 (Wash. 2006) (holding that "it would violate public policy to allow attorneys to sue each other on the theory that cocounsel have a fiduciary duty to protect one another's prospective interests in a contingency fee" (quotation omitted)); Scheffler v. Adams & Reese, LLP, 950 So. 2d 641, 653 (La. 2007) ("Accordingly, we hold that, as a matter of public policy, based on our authority to regulate the practice of law pursuant to the constitution, no cause of action will exist between co-counsel based on the theory that co-counsel have a fiduciary duty to protect one another's prospective interests in a fee."). In two of these cases, the plaintiff based his breach of fiduciary duty claim on an alleged joint venture agreement between co-counsel.
Beck was followed in a subsequent decision by the Washington Supreme Court. In Mazon v. Krafchick, 158 Wash.2d 440, 144 P.3d 1168 (2006), attorney Mazon was retained to represent an individual in connection with his claim for personal injury. With his client's consent, Mazon associated attorney Krafchick in what the parties agreed was a "joint venture agreement" to split fees and costs equally.
Thereafter, the trial court granted Teller's CR 12(c) motion, but only with respect to Ferguson's breach of contract and negligent misrepresentation claims. In a subsequent letter to the parties, the trial judge wrote, "Mr. Waid did state that Plaintiff was withdrawing her claim for breach of contract based on the authority cited in Defendant's CR 12(c) motion, specifically Mazon v. Krafchick, 158 Wn.2d 440, 144 P.3d 1168 (2006). The court dismissed the claim of negligent misrepresentation based on that same authority."
In contrast, Mr. Horn cites to cases which patently reject the proposition. In Mazon v. Krafchick, 158 Wash.2d 440, 144 P.3d 1168 (2006) (en banc), the Washington Supreme Court considered a case similar to the case here. Two attorneys co-represented a client in a personal injury action and one of the attorneys failed to have the defendant served with the complaint in a timely fashion. Id. at 1169-70.
The rule comes from tort principles as a means of ensuring that a fact finder will not reduce a defendant's liability because the claimant received money from other sources, such as insurance carriers. Mazon v. Krafchick, 158 Wn.2d 440, 452, 144 P.3d 1168 (2006). Although the court uses the word "liability" in the context of the collateral source rule, both the citation to Johnson and the preceding phrase of "reduc[ing] a defendant's liability" make clear that the court intended such phrasing to signify that a fact finder is precluded from relying on the existence of a plaintiff's collateral sources of money to reduce the amount of damages that a defendant-who has already been found to be liable for damages-must pay to such a plaintiff.
In an effort to address these policy concerns, courts in some jurisdictions have adopted a bright-line rule prohibiting lawsuits between cocounsel over the loss of prospective fees. See, e.g., Beck v. Wecht, 28 Cal.4th 289, 297–298, 121 Cal.Rptr.2d 384, 48 P.3d 417 (2002) (public policy protecting attorney's undivided loyalty to client prohibited counsel from suing each other over prospective interests in contingent fee arrangement); Scheffler v. Adams & Reese, LLP, 950 So.2d 641, 653 (La.2007) (undivided loyalty to client should not be diluted by duty to protect cocounsel's interest in prospective fees); Mazon v. Krafchick, 158 Wash.2d 440, 449, 144 P.3d 1168 (2006) (undivided duty of loyalty to pursue case in client's best interest means that no duty exists between cocounsel that would allow recovery for lost or reduced prospective fees); Horn v. Wooster, 165 P.3d 69, 78–79 (Wyo.2007) (refusal to recognize cause of action by one attorney against his negligent cocounsel for lost or reduced prospective fees, as duty of undivided loyalty to client could be compromised). Those courts flatly rejected any imposition of a duty of care owed by one attorney to another to protect an attorney's prospective interest in contingency fees.
However, our Supreme Court has held that no fiduciary duty exists among co-counsel, reasoning that "both attorneys owe an undivided duty of loyalty to the client." Mazon v. Krafchick, 158 Wn.2d 440, 448-49, 144 P.3d 1168 (2006). Knutsen's argument is unpersuasive.
Neither the facts nor public policy support Meeks' position. ¶50 Meeks relies on Mazon v. Krafchick, 158 Wn.2d 440, 144 P.3d 1168 (2006), and RPC 1.5(e) as authority for his position. Mazon is not on point. Mazon involves an attorney suing his cocounsel for loss of prospective fees after cocounsel failed to serve a complaint on time, causing the statute of limitations to lapse and the resultant inability to file the lawsuit.
However, contribution is a "tortfeasor's right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share, the shares being determined as a percentage of fault." Mazon v. Krafchick, 158 Wash. 2d 440, 451–52, 144 P.3d 1168 (2006) (quoting Black's Law Dictionary 353 (8th ed. 2004)). "The right of contribution is limited to parties who have been held jointly and severally liable for the plaintiff's injury."