Claimant may not assign proceeds of legal-malpractice claim

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Shortly thereafter, in May 2003, the Washington Supreme Court in Kommavongsa v. Haskell, 149 Wn.2d 288 (2003) held that assignment of a legal-malpractice claim was void because it violated the public policy of Washington.

Recognizing that Kommavongsa rendered the assignment of the malpractice claim void, in May 2004 Kim and Reina modified their agreement. Kim now promised to pursue the malpractice claim to settlement or judgment, with the assistance of Reina’s lawyer, Komron Allahyari, and give any proceeds to Kim. Kim and Reina entered into a new contingent-fee agreement in which Allahyari represented both of them.

Allahyari then sued O’Sullivan in Kim’s name. O’Sullivan moved for summary judgment because Kommavongsa barred the action. The trial court granted the motion and dismissed the action, and Kim appealed.
Kim argued that because the suit was in his own name, the Kommavongsa rule did not bar it. The Kommavongsa Court did allow for the assignor to be substituted into the action as the real party in interest so that the malpractice claim could “proceed in normal course as between the proper parties thereto.”

The Court of Appeals rejected Kim’s argument. The court noted that the client-claimant must be the real party in interest. Here, Kim was not the real party in interest; Reina was. In substance, the claim was no different than an assigned legal-malpractice claim. The assignment of proceeds was “made merely to circumvent the public policy barring assignments,” according to a Connecticut case that the Kim court cited with approval.

Furthermore, in this case dismissal was warranted because Kim did not present any evidence that O’Sullivan’s conduct caused him any damages, because of Reina’s covenant not to execute on the judgment against Kim’s personal assets.