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Snow5/18/1999
Circuit relied primarily on Woody's Olympia, cited above, which liberally construed the Washington execution statute as follows:
" ur statute is sufficiently broad to include unliquidated tort claims even if of dubious value, and we see no reason to limit by judicial construction or prohibit the judicial process of attachment or execution by excluding such claims. If such a step is to be taken, it is for the legislature and not for the courts." Id. (quoting Woody's Olympia, 513 P.2d at 853-54). We similarly hold that our writ of execution rules are quite broad and, absent legislative proscription, encompass unliquidated tort claims, including legal negligence actions.
III. PUBLIC POLICY
Notwithstanding our determination that a legal malpractice cause of action is subject to execution and can generally be purchased by a judgment creditor, we reverse the court of appeals' determination that the very law firm against which a malpractice claim is brought may purchase the cause of action. We do so on the basis of public policy. This question is one that this court is particularly suited to decide, because the public policy concerns at issue closely touch on our regulatory and supervisory responsibilities over the practice of law. See Black v. Clegg, 938 P.2d 293, 297 (Utah 1997) (relying on Utah Const. art. VIII, § 4 to hold that Supreme Court has power to regulate practice of law); see also Barnard v. Utah State Bar, 804 P.2d 526, 528 (Utah 1991). We hold that Snow Nuffer's actions--in forcing an execution sale of defendant's assets to satisfy a default judgment, purchasing Tanasse's pending legal malpractice claim against it, and extinguishing that claim through a motion to dismiss--violate public policy.
The acquisition of this legal malpractice claim by Snow Neffer creates two problems. First it has the effect of denying Tanasse the right to a trial on his claims. See Utah Const. art. I, § 11. Snow Nuffer obviously has no intention to litigate a claim against itself:
"When a judgment debtor's cause of action against his judgment creditor is turned over to the judgment creditor, the judgment creditor becomes the holder of a cause of action against himself. The judgment creditor becomes both plaintiff and defendant. Under such circumstances, any justiciable controversy is extinguished. Thus, the judgment debtor is forever deprived of his day in court on that cause of action." Criswell v. Ginsberg & Foreman, 843 S.W.2d 304, 306 (Tex. Ct. App. 1992). We are reluctant to permit the denial of access to our courts by persons asserting negligence claims against lawyers in this fashion.
Second, the appropriate value of the legal malpractice claim will never be fairly determined. See Associated Ready Mix, Inc. v. Douglas, 843 S.W.2d 758, 762 (Tex. Ct. App. 1992). Snow Nuffer, whose incentives are in favor of under-valuation, purchased the claim and assigned it the value of $10,000. Snow Nuffer then filed a partial satisfaction of judgment in the amount of $10,000, leaving Tanasse with a debt to the firm of over $4,000. However, Snow Nuffer's assigned value of $10,000 was completely arbitrary. See generally Commerce Savings Assoc. v. Welch, 783 S.W.2d at 668,671 (Tex. Ct. App. 1989)("We have no means of discerning the worth of Welch's cause of action against Commerce, which dealt with conditions surrounding a $16 million loan from Commerce to Welch. Welch's cause of action against Commerce could conceivably be worthless. On the other hand, it could be of considerable value."). Tanasse's claim against Snow Nuffer was predicated on a $102,000 judgment entered against him in a wrongful eviction case. Tanasse's cause of action could be worthless.
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