THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

George Skipper, Veronica Skipper, Michael Perry 

Bowers, Specialty Logging, LLC, and Harold Moors, 

Plaintiffs, 

v. 

ACE Property and Casualty Insurance Company, 

Brantley C. Rowlen, and Erin Lawson Coia, Defendants. 

Appellate Case No. 2014-001979 

CERTIFIED QUESTION 

ON CERTIFICATION FROM THE UNITED STATES 

DISTRICT COURT FOR SOUTH CAROLINA 

J. Michelle Childs, United States District Judge 

Opinion No. 27547 

Heard April 7, 2015 – Filed July 15, 2015 

CERTIFIED QUESTION ANSWERED 

Blake A. Hewitt, of Bluestein Nichols Thompson & 

Delgado, of Columbia; Mark B. Tinsley, of Gooding & 

Gooding, of Allendale; and Randolph Murdaugh, IV, of 

Peters, Murdaugh, Parker, Eltzroth & Detrick, of 

Hampton, for Plaintiffs. 

Robert H. Hood, Robert H. Hood, Jr., and Deborah 

Harrison Sheffield, all of the Hood Law Firm, LLC, of 
Charleston, for Defendants Brantley C. Rowlen and Erin 

Lawson Coia. 

A. Camden Lewis, of Lewis, Babcock & Griffin, L.L.P., 

of Columbia; Ronald K. Wray, II and Gray T. Culbreath, 

both of Gallivan, White & Boyd, P.A., of Greenville; and 

Robert Rivera, Jr. and Robert S. Safi, both of Susman 

Godfrey L.L.P., of Houston, Texas, for Defendant Ace 

Property and Casualty Insurance Company. 

David C. Marshall, of Turner Padget Graham & Laney 

P.A., of Columbia; and Alan G. Jones, of McAngus, 

Goudelock & Courie, of Myrtle Beach, for Amicus 

Curiae, South Carolina Defense Trial Attorneys' 

Association. 

David C. Marshall and R. Hawthorne Barrett, of Turner 

Padget Graham & Laney P.A., of Columbia, for Amicus 

Curiae, Property Casualty Insurance Association of 

America. 

JUSTICE KITTREDGE: We certified the following question from the United 

States District Court for the District of South Carolina: "Can a legal malpractice 

claim be assigned between adversaries in litigation in which the alleged legal 

malpractice arose?" In answering the question "no," we adopt the majority rule 

and hold that such assignments are void as against public policy. 

I. 

George Skipper, a citizen of Georgia, was involved in a motor vehicle accident 

with a logging truck that was driven by Harold Moors and owned by Specialty 

Logging, LLC (Specialty). Specialty had a commercial automobile insurance 

policy with a $1,000,000 per occurrence limit (the Policy), which was issued by 

ACE Property and Casualty Insurance Company (ACE). Following the accident, 

Skipper retained an attorney who wrote a demand letter to ACE offering to settle 

the case for the limits of the Policy. ACE retained two lawyers from Atlanta, 

Brantley C. Rowlen and Erin Lawson Coia, to represent Specialty and Moors. 

Specialty and Moors, through counsel, offered Skipper $50,000. 
 

Not satisfied with the $50,000 offer, Skipper and his wife (the Skippers) filed a 

lawsuit in the Allendale County Court of Common Pleas against Specialty and 

Moors. Additional attempts to settle the case proved fruitless. 

Unbeknownst to ACE or its attorneys, the Skippers entered into a settlement with 

the allegedly at-fault defendants, Moors and Specialty. Moors, Specialty, and 

Specialty's owner Michael Perry Bowers (collectively, Specialty Parties) agreed to 

execute a Confession of Judgment for $4,500,000, in which they admitted liability 

for the Skippers' injuries and losses. The Specialty Parties also agreed to pursue a 

legal malpractice claim against ACE and its attorneys Rowlen and Coia 

(collectively, Defendants) and assigned the predominant interest in that claim to 

the Skippers.1

 In exchange for the Specialty Parties' admission of liability, the 

Skippers agreed not to execute the judgment as long as the Specialty Parties 

cooperated in the legal malpractice litigation against Defendants. 

Armed with the assignment, the Skippers and Specialty Parties (collectively, 

Plaintiffs) filed a legal malpractice action against Defendants in the Allendale 

County Court of Common Pleas. The case was removed to the United States 

District Court for the District of South Carolina. In federal court, Defendants 

asserted the assignment of the malpractice claim was invalid and that the Skippers 

had no valid claims to assert. The parties filed competing motions, which (we are 

informed) turn on whether the assignment to the Skippers was valid. 

Because the question of whether a legal malpractice claim can be assigned between 

adversaries in litigation in which the alleged malpractice arose is a novel question 

in South Carolina, this Court accepted the certified question of United States 

District Court Judge J. Michelle Childs. 

II. 

The majority rule in other jurisdictions is to prohibit the assignment of legal 

malpractice claims between adversaries in the litigation in which the alleged 

malpractice arose. See Edens Techs., LLC v. Kile Goekjian Reed & McManus, 

PLLC, 675 F. Supp. 2d 75, 79 (D.D.C. 2009) ("[T]he majority of courts have found 

that the costs to society outweigh the benefits and that overriding public policy 

1

 The terms of the assignment indicated that the Skippers would receive between 

eighty-five and ninety-five percent of any proceeds from a settlement or judgment 

in the legal malpractice case, even if that amount was less than the $4,500,000 

Confession of Judgment. 
concerns render these types of assignments invalid."). The most common reason 

other courts have declined to permit assignments of legal malpractice claims is to 

avoid the risk of collusion between the parties. Were we to permit such 

assignments, plaintiffs and defendants would be incentivized to collude against the 

defendant's attorney. When an original defendant is essentially relieved of 

liability, there is little incentive for the consent judgment to reflect the actual loss. 

As courts around the country have recognized, the potential for inflated damages in 

such consent judgments is manifest. See id. ("Because the 'losing' party in the 

consent judgment will never have to pay, nothing prevents the parties from 

stipulating to artificially inflated damages that could serve as the basis for unjustly 

high damages in the 'trial within a trial' phase of the subsequent malpractice 

action."). This potential for collusion and inflated consent judgments undermines 

the very nature of the jury system. See Prince v. Peterson, 538 P.2d 1325, 1329 

(Utah 1975) (noting "[w]e frequently declare our commitment to the jury system, 

under which it is the prerogative of lay citizens to determine questions of fact, both 

as to liability and the fixing of damages"). Simply put, "[a] party should not be 

permitted to transmute a claim against a penniless adversary into a claim against 

the adversary's wealthier lawyer based on the lawyer's supposed negligence 

towards the adversary." Alcman Servs. Corp. v. Bullock, 925 F. Supp. 252, 258 

(D.N.J. 1996). 

In addition to the heightened risk for collusion, permitting the assignment of legal 

malpractice claims between adversaries threatens the integrity of the attorneyclient relationship. The relationship between an attorney and a client is a fiduciary 

one by nature and "is founded on the trust and confidence reposed by one person in 

the integrity and fidelity of another." Moore v. Moore, 360 S.C. 241, 250, 599 

S.E.2d 467, 472 (Ct. App. 2004) (citations omitted). Permitting these assignments 

would allow plaintiffs "to drive a wedge between the defense attorney and his 

client by creating a conflict of interest." Zuniga v. Groce, Locke & Hebdon, 878 

S.W.2d 313, 317 (Tex. App. 1994). 

Moreover, permitting an assignment of a legal malpractice claim between 

adversaries in litigation in which the alleged malpractice arose would lead to 

disreputable role reversals in which the plaintiff-assignee would be required to take 

a position "diametrically opposed" to its position in the underlying litigation. Id. 

The Court of Appeals of Texas detailed this role reversal in Zuniga: 

In each assigned malpractice case, there would be a demeaning 

reversal of roles. The two litigants would have to take positions 

diametrically opposed to their positions during the underlying 
litigation because the legal malpractice case requires a "suit within a 

suit." To prove proximate cause, the client must show that his lawsuit 

or defense would have been successful "but for" the attorney's 

negligence. In the malpractice suit, the [plaintiff-assignees] would 

argue that [the defendant-assignor] suffered judgment not on the 

strength of the [plaintiff-assignees'] claim but because of attorney 

negligence. 

In the underlying tort case, the [plaintiff-assignees'] position was: we 

have a valid tort case involving a defective . . . ladder [built by the 

defendant assignor], and we will win the case on the merits even if 

[the defendant-assignor's] lawyer represents it capably. But to prove 

proximate cause in the legal malpractice case, the [plaintiff-assignees] 

would have to take the contrary position: we would have lost our tort 

case and [the defendant-assignor] would have prevailed if its lawyers 

had capably defended our suit. [The defendant-assignor] would have 

won the defective-ladder case if only its lawyers had used due care 

and competence. 

For the law to countenance this abrupt and shameless shift of 

positions would give prominence (and substance) to the image that 

lawyers will take any position, depending upon where the money lies, 

and that litigation is a mere game and not a search for truth. It is one 

thing for lawyers in our adversary system to represent clients with 

whom they personally disagree; it is something quite different for 

lawyers (and clients) to switch positions concerning the same incident 

simply because an assignment and the law of proximate cause have 

given them a financial interest in switching. 

Id. (internal citations omitted). 

We have carefully considered the arguments of Plaintiffs' able counsel urging this 

Court to adopt the minority rule, but we find the majority rule more compelling 

and persuasive. Accordingly, in South Carolina, the assignment of a legal 

malpractice claim between adversaries in litigation in which the alleged 

malpractice arose is prohibited. 

 
CERTIFIED QUESTION ANSWERED. 

TOAL, C.J., PLEICONES, BEATTY and HEARN, JJ., concur.