Advocate's Journal

Legal Malpractice Claims Cannot Be Assigned Between Adversaries in Litigation

The South Carolina Supreme Court certified the following question from the United States District Court: “Can a legal malpractice claim be assigned between adversaries in litigation in which the alleged legal malpractice arose?” The Court answered the question in the negative, following the majority of other jurisdictions that have addressed the issue and finding that such an assignment is void as against public policy. Specifically, the Court recognized, as other jurisdictions have noted, that permitting the assignment of a legal malpractice claim among adversaries in litigation in which the alleged malpractice arose would incentivize collusion. “A party should not be permitted to transmute a claim against a penniless adversary into a claim against the adversary’s wealthier lawyer based on the lawyer’s supposed negligence towards the adversary.” The Court also noted that such an assignment “threatens the integrity of the attorney-client relationship” and “would lead to disreputable role reversals in which the plaintiff-assignee would be required to take a position ‘diametrically opposed’ to its position in the underlying litigation.”

Skipper v. ACE Prop. & Cas. Ins. Co., Op. No. 27547 (S.C. July 15, 2015).

Read the full opinion here.