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Snow5/18/1999
On the other hand, it could be of substantial value. If we allow Snow Nuffer's actions to stand, the true value of the action will never be determined, and yet Tanasse will remain liable not only for the judgment he claims was caused by Snow Nuffer's negligence but also for the deficiency judgment on the execution.
We recognize that both of the above-described problems are present in every situation in which a judgment creditor seeks to execute on an action pending against it. However, in situations like the present, in which the attorney-client relationship is at issue, these problems take on special significance. Allowing lawyers and law firms to execute on legal malpractice actions pending against them may significantly undermine the public trust in the legal profession and process and compromise the relationship.
As described above, this case involves the defendant-law firm's unilateral extinction of a malpractice claim against it through the purchase of the claim in an execution sale. While we have no evidence regarding the motives of Snow Nuffer in this case, a transaction like this will always occur in circumstances involving a conflict between a lawyer's interest and that of a former client. There is, in fact, a double layer of conflict here: the lawyer has sued the client for unpaid fees and the client is suing for malpractice. There may be a significant motivation for the lawyer to "buy out" the malpractice claim for a nominal amount (or at least for an amount the lawyer designates), leaving a deficiency judgment owing, while the client loses the opportunity to litigate. Although such a practice may be acceptable in cases not involving legal malpractice claims, we believe public confidence in both the legal profession and the legal process as a whole would be damaged if lawyers were allowed to execute on legal malpractice claims brought against them.
Furthermore, we are unable to see how Snow Nuffer will be unfairly prejudiced if it is prohibited from executing against Tanasse's malpractice claim against it. If Tanasse goes forward with its action against Snow Nuffer, any judgment recovered will be offset against the legitimate amounts owed to Snow Nuffer including all interest that is properly due. If Tanasse chooses not to proceed with the litigation, Snow Nuffer will suffer no harm because the original judgment remains in place. Finally, the parties may choose to settle their disputes through arm's length negotiations, thereby mutually agreeing upon the value of the claims.
Accordingly, we hold that Snow Nuffer may not execute on Tanasse's legal malpractice claim against it. This holding simultaneously allows a law firm to recoup fees owed for services rendered and preserves a client's opportunity to litigate what may be legitimate legal malpractice claims. This holding balances the public's interest in a legal system and legal profession that is just in both appearance and fact with the equities for both the lawyer and the client.
In Conclusion, we affirm the court of appeals' determination not to decide whether a legal malpractice claim is voluntarily assignable. We also affirm the court of appeals' holding that a legal malpractice claim can be executed upon and involuntarily transferred. However, we hold that it is against the public policy of Utah for a law firm to purchase in an execution sale a legal malpractice cause of action that has been filed against it. We therefore set aside the sheriff's sale.
Chief Justice Howe and Justice Russon concur in Associate Chief Justice Durham's opinion.
ZIMMERMAN, Justice, Concurring and Dissenting:
I concur in the result reached by the majori
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