Shaffery

To the chorus of cases decreeing that a lawyer sued by a former client for professional negligence cannot seek indemnity from the lawyer subsequently retained by the client on the same matter, we add a variation on a familiar refrain: When a lawyer whose fees were paid by his client’s insurer is sued by the insurer for malpractice, the lawyer may not seek indemnity from the lawyers retained by the insurer to “monitor” the same case.

Facts

An employee sued his employer, J&J Snack Foods Corp., for sexual harassment. J&J, as the insured under a $1 million employment practices *770 liability policy issued by Lexington Insurance Company, had coverage for sexual harassment claims. J&J retained John Shaffery (and others included in our subsequent references to Shaffery) to defend the harassment case and paid Shaffery’s fees until the deductible amount of the Lexington policy was satisfied, then tendered defense of the case to Lexington. Lexington agreed to defend J&J and entered an agreement with Shaffery for his continued representation of J&J. Lexington also hired the firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP (WEMED) to act as “monitoring counsel” for the…