Streit v. Covington & Crowe

98 Cal. Rptr. 2d 193, 82 Cal. App. 4th 441, 2000 Cal. Daily Op. Serv. 6108, 2000 Daily Journal DAR 8073, 2000 Cal. App. LEXIS 578

• Court: California Court of Appeal
• Decided: July 20, 2000
• Docket: E023862
• Status: Published

Opinions

Opinion

McKINSTER, Acting, P. J.

Procedural Background

Yvonne L. Streit sued Weldon Diggs, his professional corporation, Linda Wilde, and Deborah Walker (Diggs defendants), together with numerous fictitiously named defendants, for damages for legal malpractice. Framed in three counts, her complaint alleges that the defendants committed malpractice in defending her in two actions and in prosecuting a cross-complaint in one of them. All three counts are asserted against every defendant, including every Doe defendant. Thereafter, Streit amended her complaint to substitute Covington & Crowe, a law firm, and Gerald R. Gatlin, a lawyer who had practiced at that firm, for two of the Doe defendants.

The Diggs defendants moved for summary adjudication as to the first and third counts of the complaint. Covington & Crowe and Gatlin (collectively, Covington & Crowe) joined in the motion for summary adjudication on the same grounds raised by the Diggs defendants. Covington & Crowe represented that their only connection to Streit’s representation was that, as a professional courtesy to Streit’s attorneys of record, the Diggs defendants, Covington & Crowe had “specially appeared” for Streit in their stead at a hearing on a motion for summary judgment.

The trial court denied the motion as to the Diggs defendants, finding that disputed issues of material fact existed. But it granted summary judgment to Covington & Crowe, explaining: “There is no evidence in support of plaintiff’s contention that special appearance at the motion for summary judgment constitutes a representation of plaintiff on all of the issues contained in the motion raised at the hearing. . . . The evidence appears to be uncontradicted that Covington & Crow [sz'c] was not associated as counsel for plaintiff, did not participate in any advice or recommendations to plaintiff, and appeared at the hearing on the motion for summary judgment solely as an accommodation to the Diggs defendants.”

After the action against the Diggs defendants was settled and dismissed, the trial court entered judgment in favor of Covington & Crowe. Streit appeals. We reverse.

An Attorney Specially Appearing for a Litigant Instead of the Litigant’s Attorney of Record Owes a Duty of Care to That Litigant.

Streit contends that summary judgment was both procedurally and substantively improper. However, because we find that the trial court erred as a matter of substantive law, we need not resolve the procedural issues.¹

The substantive issue raised by Streit is this: When an attorney makes what is commonly referred to as a “special appearance” for a litigant instead of the litigant’s attorney of record, does the specially appearing attorney owe a duty of care to the litigant?² Covington & Crowe contends that no attorney-client relationship arises in that situation. As noted above, the trial court agreed. We do not.

“One of the requisite elements of a legal malpractice claim is the existence of an attorney-client relationship or other basis for a duty of care owed by the attorney.” (Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 297 [10 Cal.Rptr.2d 293].) When the evidence is undisputed, the question of whether an attorney-client relationship exists is one of law. (Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1733 [20 Cal.Rptr.2d 756].)

Although the relationship usually arises from an express contract between the attorney and the client, it may also arise by implication. (1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, § 68, p. 101; 3 Levy et al., Cal. Torts (1999) Attorneys, § 32.02[1], pp. 32-7 to 32-8; 1 Mallen & Smith, Legal Malpractice (4th ed. 1996) § 8.3, p. 568.) “ ‘Neither contractual formality nor compensation nor expectation of compensation is required.’ ” (Miller v. Metzinger (1979) 91 Cal.App.3d 31, 40 [154 Cal.Rptr. 22], quoting from Tormo v. Yormark (D.N.J. 1975) 398 F.Supp. 1159, 1169; accord, Lister v. State Bar (1990) 51 Cal.3d 1117, 1126 [275 Cal.Rptr. 802, 800 P.2d 1232].)

The relationship may arise without any direct dealings between the client and the attorney. For instance, by retaining a single attorney, a client establishes an attorney-client relationship with any attorney who is a partner of or is employed by the retained attorney. (Little v. Caldwell (1894) 101 Cal. 553, 559 [36 P. 107] [partner]; Raskin v. Superior Court (1934) 138 Cal.App. 668, 670 [33 P.2d 35] [employee’s authority to represent client]; 1 Witkin, Cal. Procedure, supra, § 70, p. 103; 1 Mallen & Smith, Legal Malpractice, supra, § 5.3, p. 338 [partner].) “The relationship also arises from a simple association for a particular case.” (1 Witkin, supra, § 71, p. 103; and see Wells Fargo & Co. v. City etc. of S. F. (1944) 25 Cal.2d 37, 43 [152 P.2d 625] [noting that an associated attorney and an attorney of record share the duty of representation]; Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176 [98 Cal.Rptr. 837, 491 P.2d 421] [reversing summary judgment in favor of associated attorneys and thereby suggesting that associated attorneys have a duty to client]; Joseph A. Saunders, P.C. v. Weissburg & Aronson (1999) 74 Cal.App.4th 869, 873 [87 Cal.Rptr.2d 405] [associated attorney owes duty to client]; 3 Levy et al., Cal. Torts, supra, § 32.04[3][b][ii], p. 32-29 [original attorney and associated attorney are jointly liable to client for any wrongful conduct by associated attorney].)

Covington & Crowe would have us draw a distinction between an association for an entire case and an association for the purpose of the hearing of a single motion, and hold that there is an attorney-client relationship in the former but not in the latter. In particular, it would have us find that a “special appearance” is not, in substance, an association of counsel.

Contrary to Covington & Crowe’s assertion, an attorney making a special appearance is associated with the party’s attorney of record. Indeed, if that were not the case, the specially appearing attorney would not be allowed to be heard. When a party is represented by an attorney of record, no other attorney has authority to appear on the party’s behalf unless the attorney making the appearance is associated with the attorney of record. (In re Marriage of Park (1980) 27 Cal.3d 337, 343 [165 Cal.Rptr. 792, 612 P.2d 882].)

That the association is limited to a single appearance is a distinction only of degree, not of kind. In any association, the lead attorney and the associated attorney must “divide the duties concerning the conduct of the cause.” (Wells Fargo & Co. v. City etc. of S. F., supra, 25 Cal.2d at p. 43; Young-worth v. Stark (1991) 232 Cal.App.3d 395, 407 [283 Cal.Rptr. 668].) The responsibility for performing the bulk of those duties may be given to the associated counsel, or may be retained by the lead counsel. In the case of a one-time appearance, the duties assigned to the associated counsel are limited in time and scope. But whatever the allocation between them, both attorneys have an attorney-client relationship with the litigant they represent until that association is terminated.

Recognizing that an attorney making a special appearance is representing a client is consistent with the rule that the act of making a court appearance on behalf of a party creates a presumption that the attorney is authorized to do so, and hence is strongly presumptive of an attorney-client relationship. (Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 523 [154 Cal.Rptr. 874].) It is also consistent with common sense. By appearing at a hearing in a case in which the attorney has no personal interest, the attorney is obviously representing the interests of someone else, someone who is a party to that action. The client is such a person; the client’s attorney of record is not. We conclude that an attorney making a special appearance is representing the client’s interests and has a professional attorney-client relationship with the client.

Covington & Crowe contends that this conclusion is contrary to principles of agency law. In particular, it argues that the specially appearing attorney is merely the agent of the attorney of record, not the agent of the client.

That contention is doubtful,³ but we need not decide it. Although an attorney is generally said to be an agent of the client, agency principles are used primarily to indicate the nature and extent of the attorney’s authority. (1 Witkin, Cal. Procedure, supra, Attorneys, §§ 261-262, pp. 326-328.) Agency principles are not controlling when determining the existence and scope of an attorney’s duties. (Id., § 262, p. 327.)

An attorney owes a professional duty of care to every person with whom that attorney has an attorney-client relationship. Whether the attorney was selected directly by the client or associated by the attorney of record, that relationship exists. “[T]he principal attorney and the associate attorney each owes the same duty of loyalty to the client . . . (Pollack v. Lytle (1981) 120 Cal.App.3d 931, 942 [175 Cal.Rptr. 81].) Nor does it make any difference that the associated attorney is being compensated by the attorney of record rather than the client, or is not being compensated monetarily at all. Just as a defense attorney selected and compensated by an insurer nevertheless represents an insured client and owes that client a duty of care (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 609 [210 Cal.Rptr. 578]), the associated attorney represents the client and owes a duty of professional care to the client.

To summarize, we hold that, by agreeing to “specially appear” in the place of Streit’s attorneys of record, Covington & Crowe undertook a limited association with that firm for the purpose of representing Streit at the hearing on the motion for summary judgment. Covington & Crowe thereby entered into an attorney-client relationship with Streit pursuant to which Covington & Crowe owed Streit a duty of care. The trial court erred by concluding otherwise.

Our conclusion that Covington & Crowe owed a duty to Streit does not resolve the entire issue raised below. Still to be decided is the precise scope of that duty. (Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 1998) ¶ 3:76, p. 3-20; 1 Mallen & Smith, Legal Malpractice, supra, § 8.2, p. 556.) But in the absence of an adequate showing of undisputed facts concerning the details of the engagement of Covington & Crowe by the Diggs defendants and the nature of the instructions they gave to Covington & Crowe, we must leave it to the trial court to resolve that additional issue.

Disposition

The judgment is reversed. The trial court is directed to vacate the order granting summary judgment in favor of Covington & Crowe and Gatlin and to enter a new order denying their motion for summary adjudication. Streit shall recover her costs on appeal.

Richli J., concurred.

1 Even had we decided the procedural issues, we still would have been required to reach the substantive issue because it inevitably would have arisen again in the trial court. (Code Civ. Proc., § 43.)

2 Technically, “special appearance” means an appearance for the limited purpose of challenging an assertion of personal jurisdiction over a party. (2 Witkin, Cal. Procedure (4th ed. 1997) Jurisdiction, § 197 et seq., p. 763.) But we employ it here in its less formal but perhaps more common usage to denote an appearance at a hearing by one attorney at the request and in the place of the attorney of record, whether with or without compensation. (See, e.g., McCullough v. Commission on Judicial Performance (1989) 49 Cal.3d 186, 195-196 [260 Cal.Rptr. 557, 776 P.2d 259]; Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1010 [59 Cal.Rptr.2d 350]; County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781-782 [140 Cal.Rptr. 383].)

3 If an agent is authorized by the principal to employ a subagent, the subagent owes the same duties to the principal as does the agent. (Civ. Code, § 2351; accord, Rest.2d Agency, § 428.) An agent may employ and delegate duties to a subagent “[w]hen it is the usage of the place to delegate such powers . . . .” (Civ. Code, § 2349, subd. 3.) The courts long ago took judicial notice that in California it is the custom for attorneys or firms to hire attorneys as employees to assist in performing legal work for which the employing attorney or firm has been retained. (Raskin v. Superior Court, supra, 138 Cal.App. at p. 670.) We could just as confidently take judicial notice that it is also the custom in California for attorneys of record to associate independent attorneys or firms to assist in that representation. Although the client is not liable for the expense of the associated counsel absent an express agreement (Porter v. Elizalde (1899) 125 Cal. 204, 207 [57 P. 899]; Johnson v. California I. M. T. Assn. (1938) 24 Cal.App.2d 322, 335 [74 P.2d 1073]), it appears that the attorney of record is authorized to delegate work to associated counsel if it is not at the client’s expense (1 Witkin, Cal. Procedure, supra, Attorneys, § 190, p. 247).