Copp v. Breskin
1989 Wash. App. LEXIS 375, 782 P.2d 1104, 56 Wash. App. 229 (1989)
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Rule of Law:
An attorney owes an expert or other litigation service provider an express disclaimer of personal financial responsibility if the attorney intends not to be bound by the contract for services; absent such a disclaimer, the attorney will likely be held liable.
Facts:
- Breskin & Robbins, a law firm, hired Harley Copp as an expert witness on behalf of a client.
- Breskin & Robbins advised Copp that his fees were being paid, and were to be paid, by the client.
- Copp had a policy of never accepting employment if an attorney's obligation was dependent on client reimbursement and made this policy known to the firm.
- Both Copp and Breskin & Robbins were aware of a custom that, absent a contrary agreement, attorneys are expected to pay providers of litigation services regardless of whether the client reimburses the attorney.
- Breskin & Robbins paid Copp's initial bill of $1,424 with a 'trust check' and sent an accompanying letter assuring Copp that any future charges would be paid within 30 days of his testimony.
- The client paid some of Copp's bills directly while Copp was in town for the trial.
- After the trial, Copp sent Breskin & Robbins a final bill, expecting payment within 30 days as previously agreed.
- Breskin & Robbins replied that the client was willing to pay only 30 percent of the final bill.
Procedural Posture:
- Harley Copp filed an action against Breskin & Robbins.
- Breskin & Robbins admitted the amount owed but asserted an affirmative defense that it hired Copp as an agent of a disclosed principal (the client).
- The trial court granted summary judgment in favor of Harley Copp for $14,789 for expert services.
- Breskin & Robbins appealed the summary judgment to the Court of Appeals of Washington.
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Issue:
Does an attorney owe an express disclaimer of responsibility to an expert witness if the attorney intends not to be personally liable for the expert's fees, even when the client's identity is known?
Opinions:
Majority - Webster, J.
Yes, an attorney owes an expert or other litigation service provider an express disclaimer of responsibility if the attorney intends not to be bound by a contract for litigation services. The court rejected prior dictum that suggested attorneys are not responsible for litigation costs unless they personally agree to pay them, clarifying that the ultimate responsibility for B&O tax purposes (as per Walthew) does not preclude initial liability to service providers. The court relied on Washington State Bar Association Ethics Opinion 140 (1969), which states that the primary responsibility of making it clear an attorney acts solely in an agency capacity with no personal liability rests upon the attorney. If an attorney is 'derelict' in this, others may reasonably be misled, creating an ethical obligation for the attorney to pay the indebtedness. The court also noted that the Rules of Professional Conduct, though not explicitly defining civil liability, imply such liability for upholding ethical standards. Furthermore, the court observed a clear modern trend among other jurisdictions (nine out of twelve recent decisions) to hold attorneys liable, recognizing that service providers often contract based on the attorney's credit and role as a litigation strategist. In this case, Copp's reliance on the custom of attorneys paying for expert services, Breskin & Robbins' awareness of an identical custom, and the firm's actions (such as paying an initial bill, accepting bills sent to the firm, and providing payment assurances on firm letterhead) were all consistent with the firm pledging its credit. The firm's initial statement that the client would pay was insufficient to alter this customary practice, particularly regarding situations where the client is unwilling or unable to pay. The firm's advancement of funds and subsequent lawsuit against the client, claiming Copp's owed amounts as its own damages, further evidenced its understanding of its indebtedness to Copp. The court concluded that placing the burden on the attorney to expressly disclaim responsibility promotes public trust and confidence in the legal profession.
Analysis:
This case significantly clarifies attorney liability for expert witness fees in Washington, establishing a default rule that places the burden of disclaiming personal responsibility squarely on the attorney. By moving away from a strict disclosed agency defense in this context, the decision acknowledges the practical realities of attorney-expert relationships and the reasonable expectations of service providers. It highlights the interplay between professional ethics and civil liability, reinforcing the importance of transparency and clear communication in legal practice, and setting a precedent that protects third-party litigation service providers.
