Parker

Appellant, defendant and cross-complainant, John Parker appeals from a summary judgment entered against him and in favor of cross-defendant Richard Morton on the cross-complaint for declaratory relief, implied indemnity and equitable apportionment.

The action began as a suit for legal malpractice by plaintiff, Lourdes Peterson, against her former attorney, Parker, who had represented her in a dissolution proceeding in 1972. Parker’s alleged negligence was his failure to litigate in the dissolution action his client’s community property interest in the vested military pension of her husband.

Parker filed a cross-complaint, the subject of this appeal, for total or partial indemnity against Morton, an attorney subsequently retained by Mrs. Peterson, in 1976, to remedy the problem of the unlitigated and undisposed military pension. The cross-complaint alleged that Morton failed to pursue the client’s community property claim against her former husband and thereby caused or exacerbated the damages that the client seeks in her complaint against Parker.

*755 Initially, Morton also represented the client in this action against Parker. However, after Parker obtained leave to…

I respectfully dissent.

Recent cases have uniformly held that an attorney who is sued by a former client for malpractice may not cross-complain against the client’s successor attorney who is retained to extricate the client from the situation created by the first attorney.

There are sound policy reasons supporting the rule that the first attorney has no right of indemnity from the second. Among them are: (1) the threat of such a lawsuit by a client’s adversary impinges upon the individual loyalty of the second attorney in advising his client (Held v. Arant (1977) 67 Cal.App.3d 748, 752 [ 134 Cal.Rptr. 422 ]); (2) one consequence of such a cross-complaint is to preclude the second attorney from trying the lawsuit, thus depriving the party of the attorney of his choice (Gibson, Dunn & Crutcher v. Superior Court (1979) 94 Cal. *768 App.3d 347, 352 [ 156 Cal.Rptr. 326 ]); (3) the threat of such a cross-complaint results in the injection of undesirable self-protective reservations into the attorney’s counselling role, thereby diminishing the quality of legal services received by the client (see Goodman v. Kennedy (1976) 18 Cal.3d 335, 344 [ 134 Cal.Rptr. 375 , 556 P.2d 737 ]); and…

Lewis, D'Amato, Brisbois & Bisgaard and R. Gaylord Smith for Cross-complainant and Appellant.

Breidenbach, Swainston, Yokaitis & Crispo, W.F. Rylaarsdam and Phillip J. Argento for Cross-defendant and Respondent.

OPINION

KAUFMAN, Acting P.J.

Appellant, defendant and cross-complainant, John Parker appeals from a summary judgment entered against him and in favor of cross-defendant Richard Morton on the cross-complaint for declaratory relief, implied indemnity and equitable apportionment.

The action began as a suit for legal malpractice by plaintiff, Lourdes Peterson, against her former attorney, Parker, who had represented her in a dissolution proceeding in 1972. Parker's alleged negligence was his failure to litigate in the dissolution action his client's community property interest in the vested military pension of her husband.

Parker filed a cross-complaint, the subject of this appeal, for total or partial indemnity against Morton, an attorney subsequently retained by Mrs. Peterson, in 1976, to remedy the problem of the unlitigated and undisposed military pension. The cross-complaint alleged that Morton failed to pursue the client's community property claim against her…