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Andrews v. Saylor9/25/2003
ment. Lujan v. Healthsouth Rehab. Corp., 120 N.M. 422, 426, 902 P.2d 1025, 1029 (1995). If medical malpractice is a foreseeable consequence of negligent operation of a motor vehicle in a manner that results in physical injury to another, then, a fortiori, the alleged legal malpractice of Plaintiff's successor attorneys was a foreseeable consequence of Scarborough's negligence in preparing the decree. See Collins v. Perrine, 108 N.M. 714, 718, 778 P.2d 912, 916 (Ct. App. 1989) (observing that "where the negligent conduct of an actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability").
Under New Mexico law, there may be more than one proximate cause of an injury. Torres, 1999-NMSC-029, 16; UJI 13-305 (stating that a proximate cause need not be the only cause of an injury). Thus, a finding that the failure of Plaintiff and her successor attorneys to appeal from the April 15, 1998 order was a proximate cause of Plaintiff's loss does not foreclose a finding that Scarborough's negligence also was a proximate cause.
4. Unpreserved Arguments
Plaintiff, citing Stone v. Satriana, 41 P.3d 705 (Colo. 2002) (en banc), argues that it would be contrary to public policy to allow Defendants to base the defense of comparative negligence upon the acts of Plaintiff's successor attorneys. Plaintiff argues that malpractice defendants will use the defense of comparative negligence to disqualify successor attorneys and to intrude on the attorney-client privilege. Plaintiff points out that Defendants deposed Jones and Gilstrap and successfully moved to disqualify Gilstrap. Plaintiff also argues that the threat of a third-party claim by a malpractice defendant against the client's successor attorneys may interfere with zealous advocacy by the attorney bringing the malpractice action. See Holland v. Thacher, 245 Cal. Rptr. 247, 250-54 (Cal. Ct. App. 1988).
Plaintiff frankly concedes that these arguments were not preserved. Plaintiff argues that the question of whether an attorney sued for legal malpractice may base the defense of comparative fault on the alleged malpractice of successor attorneys presents a question of "general public interest." Rule 12-216(B)(1) NMRA 2003. We agree, and therefore address this question.
"More is involved in pure comparative negligence than the removal of contributory negligence as a bar to recovery." Bartlett v. N.M. Welding Supply, Inc., 98 N.M. 152, 155, 646 P.2d 579, 582 (Ct. App. 1982). Our system of pure comparative negligence is based on fairness to both plaintiffs and defendants. Id. We must apply several-liability/comparative fault principles unless their application would be inconsistent with public policy. Reichert v. Atler, 117 N.M. 623, 625, 875 P.2d 379, 381 (1994).
While we agree that Plaintiff has raised legitimate concerns, we are not persuaded by the "throw out the baby with the bathwater" approach adopted by the Colorado Supreme Court. We think that it is possible to protect the rights of plaintiff-former clients without depriving defendant-attorneys of the defense of comparative fault. See Parler & Wobber v. Miles & Stockbridge, P.C., 756 A.2d 526 (Md. 2000) (allowing original counsel to assert a contribution claim against allegedly negligent successor counsel; rejecting the argument that by suing former counsel for malpractice, the client puts the negligence of successor counsel at issue, thereby impliedly waiving the attorney-client privilege as to communications between the client and successor counsel). We therefore reject
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