Pollack

*936 Opinion

Introduction

Plaintiff William Jerome Pollack appeals from an order of dismissal 1 as to defendant Robert C. Lytle which was entered after the trial court sustained without leave to amend defendant’s demurrer to the first (fraud), second (reasonable value of services), and fifth (declaratory relief) causes of action of plaintiff’s third amended complaint. The order sustaining the demurrers recited that plaintiff’s fourth cause of action, seeking indemnity, “is off calendar as plaintiff orally dismisses it without prejudice.”

Statement of Facts

During January 1974, plaintiff and Sidney B. Daniels (Daniels) entered into a written agreement in which plaintiff, a licensed California attorney, undertook to prepare and prosecute a medical malpractice action against Kaiser Foundation Hospitals and Dr. David Eder with respect to the negligent causation of Daniels’ quadraplegia. Plaintiff agreed to advance all necessary expenses in return for a 50 percent contingency fee and reimbursement for expense advances made. Reimbursement was not contingent upon the recovery of damages.

Pursuant to his agreement with Daniels, plaintiff filed an action in the Los Angeles County…

A fundamental question presented in the case at bench concerns the duties, if any, which should be recognized between associated counsel during their representation of a common client in order to properly plead a cause of action between such attorneys. The majority opinion applies principles of agency and fiduciary law for the first time to cases which involve lawsuits between cocounsel. Their cited cases, therefore, concern traditional applications of fiduciary and agency principles in cases which do not involve disputes among attorneys.

There is a substantial body of law concerning the liability of attorneys who sue each other in connection with common clients. A fiduciary relationship has not heretofore been recognized, and, regardless of legal theory asserted, there has emerged a recurring theme; a client’s right to the undivided loyalty of his or her attorneys must be protected, even when the result of such rule is the denial of an attorney’s cause of action against another attorney. It is to be noted, however, that research has not revealed cases, which involve a cocounsel dispute as herein.

The majority found that the trial court had properly determined plaintiff was…

Plaintiff William Jerome Pollack appeals from an order of dismissal [1] as to defendant Robert C. Lytle which was entered after the trial court sustained without leave to amend defendant's demurrer to the first (fraud), second (reasonable value of services), and fifth (declaratory relief) causes of action of plaintiff's third amended complaint. The order sustaining the demurrers recited that plaintiff's fourth cause of action, seeking indemnity, "is off calendar as plaintiff orally dismisses it without prejudice."

During January 1974, plaintiff and Sidney B. Daniels (Daniels) entered into a written agreement in which plaintiff, a licensed California attorney, undertook to prepare and prosecute a medical malpractice action against Kaiser Foundation Hospitals and Dr. David Eder with respect to the negligent causation of Daniels' quadraplegia. Plaintiff agreed to advance all necessary expenses in return for a 50 percent contingency fee and reimbursement for expense advances made. Reimbursement was not contingent upon the recovery of damages.

Pursuant to his agreement with Daniels, plaintiff filed an action in the Los Angeles County Superior Court on…