This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 31

IN THE

SUPREME COURT OF THE STATE OF UTAH

EAGLE MOUNTAIN CITY,

Appellant,

v.

PARSONS KINGHORN & HARRIS, P.C.,

Appellee.

PARSONS KINGHORN & HARRIS, P.C.,

Third-Party Plaintiff,

v.

WILLIAMS & HUNT, P.C.,

Third-Party Defendant.

No. 20150915

Filed June 7, 2017

On Direct Appeal

Fourth District, Spanish Fork

The Honorable James M. Brady

No. 130300194

Attorneys:

Mark O. Morris, Amber M. Mettler, Douglas P. Farr, 

Salt Lake City, for appellant

Stuart H. Schultz, Byron G. Martin, Salt Lake City, for appellee

Phillip A Cole, Minneapolis, Minnesota, Timothy K. Conde, 

Lauren A. Shurman, Salt Lake City, for third-party defendant

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which 

ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE HIMONAS, and 

JUSTICE PEARCE joined.
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

2

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶ 1 Eagle Mountain City (the City) brought this legal 

malpractice action in its own name, but the district court concluded 

the action is “tainted in some respect” because it was “born of” an 

assignment. The court granted summary judgment, dismissing the 

case without prejudice on the ground that the assignment of legal 

malpractice claims violates public policy. We reverse. We hold that, 

even assuming the City assigned its legal malpractice claim, this 

assignment does not violate public policy.

¶ 2 The City entered into a contractual arrangement with Cedar 

Valley Water Association (Cedar Valley) to share in any recovery 

from this legal malpractice action brought against defendant Parsons 

Kinghorn & Harris, P.C. (Parsons Kinghorn). The parties frame this 

dispute in terms of whether this arrangement transferred sufficient 

control over the malpractice claim from the City to Cedar Valley to 

constitute an assignment. We view things differently. We conclude 

that the more appropriate question is whether the voluntary 

assignment of legal malpractice claims violates public policy as a 

general matter. If it does not, there is no need to determine whether 

the contractual arrangement in this case amounted to an assignment 

of such a claim. 

¶ 3 We hold that there is a strong presumption that legal 

malpractice claims are voluntarily assignable, but we do not 

foreclose the possibility that an assignment in a future case could 

present such strong public policy concerns that it will be invalidated. 

We reach this result because the public policy rationales articulated 

by other courts are largely unpersuasive or inapplicable in our 

jurisdiction given recent developments in the Utah Rules of Civil 

Procedure and the Utah Rules of Professional Conduct. With these 

procedural safeguards in place, legal malpractice claims are 

presumed to be freely assignable, and the circumstances of this case 

do not rebut that presumption.

Background

¶ 4 Cedar Valley sued the City in an earlier proceeding (the 

Well Lawsuit), which ended when the City and Cedar Valley entered 

into a settlement agreement and a contingent fee agreement 

(collectively, Agreements). The Agreements contemplated that the 

City would bring the lawsuit that is now before us—a legal 

malpractice action—against its former attorneys, Parsons Kinghorn.

We first briefly describe the background of the Well Lawsuit, 
Cite as: 2017 UT 31

Opinion of the Court

3

providing details relevant to some of the policy considerations we 

discuss below. We then describe the district court’s grant of 

summary judgment in this case.

¶ 5 The Well Lawsuit arose out of a contract (the Capacity 

Purchase Agreement) where the City agreed to purchase a well from 

Cedar Valley. The Capacity Purchase Agreement provided that the 

City would have an obligation to remit money to Cedar Valley if 

certain triggering conditions occurred. Parsons Kinghorn advised 

the City that the triggering conditions had not occurred, and it 

accordingly advised the City not to remit any money to Cedar 

Valley. Cedar Valley sought payment from the City, but Parsons 

Kinghorn repeatedly advised the City that no payment was due.

¶ 6 In response, Cedar Valley brought the Well Lawsuit against 

the City. That litigation focused on whether the triggering conditions 

had occurred, requiring payment under the Capacity Purchase 

Agreement. Cedar Valley, through its lawyers Snell & Wilmer, 

advanced one interpretation of the contractual language describing 

the triggering events, and the City, on the continued advice of 

Parsons Kinghorn, offered a contrary interpretation.1

¶ 7 Shortly before the Well Lawsuit was to go to trial, the City 

and Cedar Valley entered into a settlement agreement, which 

incorporated by reference a contingent fee agreement. The 

Agreements impose conditions on the City’s ability to bring this 

malpractice action and give Cedar Valley certain contractual rights

of control over the action. For example, the Agreements provide, in 

relevant part:

As part of the Settlement Agreement, [the City] has 

agreed to make demand and if needed file and 

prosecute a complaint against [Parsons Kinghorn] . . . 

alleging negligence and related malpractice claims 

(“Lawsuit”), solely on the terms and conditions of this 

Agreement. 

. . . .

_____________________________________________________________

1 The City apparently continued to consult with Parsons 

Kinghorn during the pendency of the Well Lawsuit, but because an 

attorney of Parsons Kinghorn was a material witness in that case, the 

City was represented by separate counsel, Williams & Hunt, P.C., in 

that proceeding.
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

4

[The] City and Cedar Valley desire to retain [Snell & 

Wilmer] to bring the lawsuit against [Parsons 

Kinghorn] . . . .

[C]ommunications between the jointly represented 

Clients [the City and Cedar Valley] and Attorney [Snell 

& Wilmer] are privileged as to third parties but are not 

privileged as to the Clients which are being jointly 

represented.

. . .

In the Settlement Agreement, [the] City and Cedar 

Valley agreed that after payment of costs, each would 

receive one-third . . . of the recovery, if any, from 

[Parsons Kinghorn] in the Lawsuit.

. . .

Clients each agree that [Snell & Wilmer] is entitled to 

one-third (1/3) of the sums recovered from [Parsons 

Kinghorn] (including its insurers), after out of pocket 

costs are first deducted from such recovery.

. . .

[A]ll costs incurred in connection with the Lawsuit 

shall be paid by Cedar Valley, but all amount of such 

Costs shall be first repaid from any recovery received.

. . .

In the event that [Parsons Kinghorn] and/or its 

insurer(s) make an offer of settlement to Clients, and 

they cannot mutually agree on the terms of negotiated 

settlement of the Lawsuit, then the clients agree to first 

negotiate in good faith. Failing an agreement then, the 

parties shall mediate their dispute before a 

mediator . . . . In the event the dispute is not resolved 

by mediation, each of the Clients shall select an 

arbitrator and the two selected arbitrators shall select a 

third arbitrator. . . . The decision of the three arbitrators 

regarding whether to accept or reject the pending offer 

shall be binding on the Clients.
Cite as: 2017 UT 31

Opinion of the Court

5

¶ 8 The City brought the current lawsuit in its own name in 

December 2013, pleading legal malpractice under both tort and 

contract theories. A little more than a year later, in February 2015, 

Parsons Kinghorn filed a motion for summary judgment, seeking to 

have the suit dismissed on the ground that the City—through the 

Agreements—assigned its legal malpractice claim to Cedar Valley 

and that such an assignment violates public policy.

¶ 9 The district court agreed with Parsons Kinghorn that the 

Agreements constituted at least a partial assignment of the legal 

malpractice claim, which the court determined violated public 

policy. In particular, the district court concluded that, although the 

Agreements did not “express[ly] assign[]” the legal malpractice 

claim, “it is obvious that the Agreements transfer to [Cedar Valley] a 

substantial level of control over the litigation decisions and a 

substantial portion of [the City’s] property rights.” The court granted 

summary judgment in favor of Parsons Kinghorn, dismissing the 

case without prejudice, but attaching certain conditions to the City’s 

ability to re-file. The court ordered that, as a condition of re-filing, 

the City must “satisf[y] the Court that [the legal malpractice claim] 

will be prosecuted independently of the settlement agreement. To do 

so, at a minimum, [the City] needs to establish that its litigation is 

not controlled in any way by [Cedar Valley], and that [the City] is 

not represented by attorneys associated with [Cedar Valley.]”

¶ 10 The City appeals. First, it argues that the district court erred 

in concluding that the Agreements amounted to an assignment of its 

legal malpractice claim. Second, it argues that its contractual 

arrangement with Cedar Valley does not violate public policy. We 

have jurisdiction under Utah Code section 78A-3-102(3)(j).

Standard of Review

¶ 11 The issue on appeal is whether the district court properly 

granted summary judgment in favor of Parsons Kinghorn on the 

City’s legal malpractice claim. Summary judgment is appropriate 

only where “there is no genuine dispute as to any material fact and 

the moving party is entitled to judgment as a matter of law.”2 We 

“review[] a summary judgment for correctness, giving no deference 

to the [district] court’s decision.”3

_____________________________________________________________

2 UTAH R. CIV. P. 56(a).

3 Bahr v. Imus, 2011 UT 19, ¶ 15, 250 P.3d 56.
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

6

Analysis

¶ 12 We begin by explaining why we need not consider the 

parties’ arguments regarding whether the City relinquished 

sufficient rights to control its legal malpractice claim that it can be 

said to have assigned that claim. We instead assume that the City’s 

arrangement with Cedar Valley amounted to an assignment. We 

then consider the public policy concerns articulated by other courts, 

concluding that they are unpersuasive in view of the current 

procedural and ethical safeguards of our legal system. Because we 

view our system as well-equipped to sort the wheat of these claims 

from the chaff—whether the action is brought by the alleged victim 

of malpractice or the victim’s assignee—we hold that legal 

malpractice claims are presumed to be voluntarily assignable. But 

we leave open the possibility that in a future case such an 

assignment could violate clearly expressed and compelling public 

policy concerns and thus be invalid.

I. We Assume the Contractual Arrangement Between the City and 

Cedar Valley Amounted to an Assignment of a

Legal Malpractice Claim

¶ 13 The parties have focused their arguments on whether the 

Agreements amounted to an assignment of a legal malpractice 

claim.4 We think this approach asks the wrong question. These 

arguments are based on caselaw from other jurisdictions that have 

expressly concluded that the assignment of legal malpractice claims 

_____________________________________________________________

4 The City argues that the Agreements did not transfer sufficient 

control over the litigation to amount to an assignment. It claims that 

Cedar Valley received only a right to recover a portion of the 

proceeds from the claim, not the claim itself. Parsons Kinghorn 

counters that Cedar Valley received contractual rights of control over 

numerous aspects of the malpractice action, in addition to a portion 

of the proceeds, and therefore received a partial assignment of the 

legal malpractice claim. For example, Parsons Kinghorn argues that 

Cedar Valley received the contractual right to compel this lawsuit to 

be brought. It also points out that the City is required to “obtain 

prior approval by [Cedar Valley] before it can settle the claim, or if 

the parties disagree, ultimately submit its rights to settle its case to 

binding arbitration.” Finally, it notes that Cedar Valley has the 

contractual right to receive a portion of the recovery obtained in this 

suit, and it is responsible for fronting all costs in the malpractice 

action, to be reimbursed out of any recovery.
Cite as: 2017 UT 31

Opinion of the Court

7

violates public policy. In those cases, courts have been forced to 

draw lines between permissible and impermissible levels of control 

over a legal malpractice claim.5 But these arguments and the difficult 

line-drawing they entail signal to us that we should hesitate to 

embark on this path unless we are first convinced that the 

assignment of legal malpractice claims violates public policy. If it 

does not, arguments regarding how much control is sufficient to 

constitute an assignment are simply irrelevant. 

¶ 14 We conclude that the better approach is to first determine 

whether the assignment of legal malpractice claims violates public 

policy as a general matter. We turn to that task now, examining 

public policy rationales that have been articulated by other courts. 

II. There Is a Strong Presumption that the Voluntary Assignment of a 

Legal Malpractice Claim Does Not Violate Public Policy

¶ 15 The question is whether public policy prohibits the 

voluntary assignment of legal malpractice claims. We first note that, 

before wading into the public policy arena, this court, like many 

others, indulges in a strong presumption of freedom of contract. We 

have long held that “[f]or a contract to be void on the basis of public 

policy, ‘there must be a showing free from doubt that the contract is 

against public policy.’”6 A corollary of this principle is that a contract 

will be held to violate public policy only where it violates a “welldefined and dominant” policy.7 When pressed at oral argument, 

counsel for Parsons Kinghorn described the assignment of legal 

malpractice claims as—at worst—“unseemly.” But even if we agreed 

_____________________________________________________________

5 Compare Davis v. Scott, 320 S.W.3d 87, 91 (Ky. 2010) (“This level 

of control over a lawsuit is consistent with an assignment of the 

entire cause of action, not merely the proceeds of the litigation.”),

with Weston v. Dowty, 414 N.W.2d 165, 167 (Mich. Ct. App. 1987) 

(“Since plaintiffs agreed to assign only a portion of their recovery, if 

any, from the malpractice suit, and since they did not specifically 

assign the claim or cause of action . . . , we conclude that no 

assignment of a legal malpractice action occurred.”).

6 Ockey v. Lehmer, 2008 UT 37, ¶ 21, 189 P.3d 51 (quoting Frailey v. 

McGarry, 211 P.2d 840, 847 (Utah 1949)).

7 See, e.g., State Farm Mut. Auto. Ins. Co. v. Koshy, 995 A.2d 651, 665 

(Me. 2010) (“A contract is unenforceable as violating public policy 

. . . only if it violates a well-defined and dominant policy that may be 

ascertained from the law and legal precedent.”).
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

8

with that characterization, there is no basis in our law for overriding 

freedom of contract simply because the result would be “unseemly.” 

Instead, we approach this task by asking whether the assignment of 

legal malpractice claims violates a clear and compelling public 

policy. 

¶ 16 In looking for such a policy against the assignment of legal 

malpractice claims, we start with the fact that we have already 

recognized that the involuntary assignment of these claims through 

bankruptcy does not violate public policy.8 In upholding these 

involuntary assignments, we recognized that the public policy 

interest in allowing access to our courts outweighed any 

countervailing policy concerns.9

¶ 17 Parsons Kinghorn asks us to take a different approach to 

voluntary assignments. It contends that the voluntary assignment of 

legal malpractice claims violates public policy as a general matter. 

The implication of this argument is that we need not look to the 

specific circumstances of a case to see whether any particular public 

policy concerns are implicated by its facts, but that there should 

simply be a blanket prohibition. 

¶ 18 We reject this invitation to make such a categorical 

prohibition. Instead, we examine the concerns articulated by other 

courts, explaining that each of these concerns is significantly 

mitigated by safeguards found in the Utah Rules of Professional 

Conduct and the Utah Rules of Civil Procedure. The concerns can be 

summarized into four general categories: 1) commoditizing and 

merchandising of legal malpractice claims; 2) despoiling the sanctity 

of the attorney-client relationship; 3) sowing the opportunity and 

incentive for collusion; and 4) fostering public loss of respect for the 

legal profession. After considering each in turn, we conclude that 

these concerns do not justify prohibiting the assignment of legal 

malpractice claims. 

_____________________________________________________________

8 See, e.g., Snow, Nuffer, Engstrom & Drake v. Tanasse, 1999 UT 49, 

¶ 13, 980 P.2d 208.

9 Id. (“We are reluctant to permit the denial of access to our courts 

by persons asserting negligence claims against lawyers in this 

fashion.”).
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Opinion of the Court

9

A. Concerns Regarding Commoditizing or Merchandising of Legal 

Malpractice Claims

¶ 19 Many courts expressing commoditization concerns about 

the assignment of legal malpractice claims base their reasoning on a 

1976 opinion by the California Court of Appeals, Goodley v. Wank & 

Wank, Inc.10 There, the court reasoned, without citation to authority, 

that permitting the assignment of legal malpractice claims would 

spawn a flurry of meritless litigation and debase the legal profession.

It is the unique quality of legal services, the personal 

nature of the attorney’s duty to the client and the 

confidentiality of the attorney-client relationship that 

invoke public policy considerations in our conclusion 

that malpractice claims should not be subject to 

assignment. The assignment of such claims could 

relegate the legal malpractice action to the market place 

and convert it to a commodity to be exploited and 

transferred to economic bidders who have never had a 

professional relationship with the attorney and to 

whom the attorney has never owed a legal duty, and 

who have never had any prior connection with the 

assignor or his rights. The commercial aspect of 

assignability of choses in action arising out of legal 

malpractice is rife with probabilities that could only 

debase the legal profession. The almost certain end 

result of merchandizing such causes of action is the 

lucrative business of factoring malpractice claims 

which would encourage unjustified lawsuits against 

members of the legal profession, generate an increase 

in legal malpractice litigation, promote champerty and 

force attorneys to defend themselves against 

strangers.11

¶ 20 As an initial matter, courts that express these types of 

concerns typically echo the Goodley court’s qualms about the 

marketing of legal malpractice claims to investors who are 

essentially strangers to the underlying subject matter. Some courts 

have recognized that where the purchaser of a legal malpractice 

claim has an “intimate connection” with the underlying case, the 

_____________________________________________________________

10 133 Cal. Rptr. 83 (Cal. Ct. App. 1976).

11 Id. at 87.
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

10

concerns of commoditization are not present.12 In the case at hand,

Cedar Valley had an “intimate connection” with the underlying case 

by virtue of being a party in the underlying contract that formed the 

basis for the malpractice action; so we are not presented with 

concerns of open market commoditization. 

¶ 21 But even if Cedar Valley were a stranger to the underlying 

transaction, we still would not conclude that these concerns are 

justified. First, the California Court of Appeals has, in dicta, 

questioned the continued validity of the Goodley court’s holding:

Yet there is a legitimate question whether [the Goodley

court’s] view of the legal profession comports with the 

evolved attorney client relationship of today. The 

explanation that allowing the assignment of claims 

would unduly “debase” and “commercialize” the 

profession may very well have reflected the popular 

view in 1976. However, the fears which motivated 

Goodley’s defense of an idealized attorney-client 

relationship are open to some doubt 25 years later. 

Legal actions against attorneys are now common, and 

the risk that assignments of claims will generate 

unfounded litigation unfairly burdening judicial 

dockets may be too speculative to justify continuing 

the prohibition. . . . [T]he continued viability of this 

rule created by intermediate appellate courts, has not 

yet been tested by the scrutiny of our high court.13

¶ 22 Other courts have likewise concluded that these 

commoditization concerns are speculative.14 We agree. The 

speculative nature of these concerns is magnified by the fact that 

_____________________________________________________________

12 See, e.g., Thurston v. Cont’l Cas. Co., 567 A.2d 922, 923 (Me. 1989) 

(“We are not here confronted with the establishment of a general 

market for [legal malpractice] claims; this assignee has an intimate 

connection with the underlying lawsuit.”).

13 Musser v. Provencher, 109 Cal. Rptr. 2d 214, 227 n.7 (Cal. Ct. 

App. 2001), review granted and opinion superseded, 31 P.3d 1271 (Cal. 

2001), and aff’d, 48 P.3d 408 (Cal. 2002).

14 See, e.g., Kommavongsa v. Haskell, 67 P.3d 1068, 1078 (Wash. 

2003) (rejecting the argument that commoditization would be a 

concern because “[p]ersonal injury claims have been assignable in 

Washington for years” and the court “ha[d] not seen a lucrative 

business arise in the factoring of those claims”).
Cite as: 2017 UT 31

Opinion of the Court

11

several states allow assignment of legal malpractice claims in certain 

circumstances, and those states have not reported significant 

problems or been forced to overrule their precedent and abandon the 

practice.15 We also note that even courts that prohibit the assignment 

of legal malpractice claims have allowed the assignment of 

malpractice claims against other professionals, such as accountants.16

We see little reason to single out lawyers for protection against 

malpractice claim assignment when the legal system forces other 

professionals to face their clients’ assignees for alleged malpractice. 

¶ 23 We expect that, as the California Court of Appeals itself has 

noted, some of the concerns that animated courts nearly half a 

century ago to forbid the assignment of legal malpractice claims are 

no longer present in the current legal system. We discuss two 

changes of particular importance: first, the evolution of rule 11 as an 

effective deterrent of frivolous claims, and second, the trends toward 

reduced concerns regarding the ancient doctrine of champerty and 

broader acceptance of third-party litigation funding.

¶ 24 First, in the last forty years there have been significant 

changes to rule 11 of the rules of civil procedure—a rule that 

prohibits attorneys and unrepresented parties from, among other 

things, presenting frivolous claims.17 The Federal Rules of Civil 

_____________________________________________________________

15 See, e.g., New Hampshire Ins. Co. v. McCann, 707 N.E.2d 332, 337 

(Mass. 1999) (“We suspect that fear of ‘open trading’ is based in part 

on outmoded concepts and protectionism. We ‘have long abandoned 

the view that litigation is suspect,’ and have recently abolished the 

rule against champerty, now permitting the litigation of claims 

financed by others in return for their receipt of a portion of the 

proceeds of the litigation. There is nothing to show that, in those 

jurisdictions that permit the voluntary assignment of a malpractice 

claim, there has been an increase in baseless lawsuits.” (citation 

omitted)).

16 See, e.g., KPMG Peat Marwick v. Nat’l Union Fire Ins. Co. of 

Pittsburgh, Pa., 765 So. 2d 36 (Fla. 2000); First Cmty. Bank & Tr. v. 

Kelley, Hardesty, Smith & Co., 663 N.E.2d 218 (Ind. Ct. App. 1996).

17 See UTAH R. CIV. P. 11(c) (“If . . . the court determines that” a 

suit is frivolous, “the court may . . . impose an appropriate sanction 

upon the attorneys, law firms, or parties that . . . are responsible for 

the violation.”).
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

12

Procedure often serve as models for states,18 and the federal version 

of rule 11 was amended in 1983 to specifically give the rule teeth.19

Prior to this amendment, the rule “failed to deter abuses in 

litigation,” in part because the rule lacked clarity, which made state 

and federal courts hesitant to impose sanctions under it.20

This ineffectiveness resulted from several deficiencies 

in the Rule. For example, the standard requiring ‘good 

ground to support’ a pleading was vague. Under this 

standard, an attorney was required to investigate facts 

and present them ‘to the best of his knowledge, 

information, and belief.’ Courts interpreted this as a 

subjective and rather vague requirement of good faith 

and were reluctant to impose sanctions under it. In 

addition, the only improper purpose for conducting 

litigation acknowledged by the original Rule was 

delay. The Rule failed to recognize that litigation can be 

conducted for other improper purposes, such as to 

mislead the court, to harrass an opponent, to impose 

defense costs, or to pressure an opponent into a 

settlement. Last, courts were reluctant to invoke the 

_____________________________________________________________

18 While commentators have noted that the recent trend is against 

states modeling their procedural rules on the federal system, the 

1983 amendment to rule 11, which as discussed below substantially 

bolstered that rule’s breadth and effectiveness at curbing meritless 

litigation, was adopted by many states, including Utah. John B. 

Oakley, A Fresh Look at the Federal Rules in State Courts, 3 NEV. L.J.

354, 382 (2003).

19 In fact, the 1983 amendments to rule 11 sharpened its fangs so 

much that commentators criticized the amendments for “foster[ing] 

excessive and costly litigation unrelated to the merits,” and federal 

rule 11 was amended in 1993 to address some of these concerns. 

Margaret L. Sanner & Carl Tobias, Rule 11 and Rule Revision, 37 LOY.

L.A. L. REV. 573, 582 (2004).

20 Julia K. Cowles, Rule 11 of the Federal Rules of Civil Procedure and 

the Duty to Withdraw a Baseless Pleading, 56 FORDHAM L. REV. 697, 700 

(1988) (“Experience showed that in practice Rule 11 failed to deter 

abuses in litigation. Courts found the Rule difficult to apply and 

enforce and so were reluctant to use it.” (footnotes omitted)).
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Opinion of the Court

13

Rule because they viewed the striking of a faulty 

pleading as a harsh penalty.21

¶ 25 But today, the rule has been refined into a tool that courts 

use frequently to “deter repetition” in “presenting . . . to the court” 

claims that are frivolous and factual contentions that lack 

evidentiary support or a likelihood of such support after further 

investigation or discovery.22 We are aware of no court to have 

explained why rule 11, in its current form, is insufficient to deal with 

whatever increase there might be in frivolous legal malpractice suits 

arising from permitting assignment of these claims. 

¶ 26 Second, the Goodley court’s concerns about commoditization 

spurring an increase in litigation fail to account for the increase in 

meritorious litigation that these assignments will enable. 

“[P]romot[ing] champerty” is no longer the pressing concern to 

courts that it once was.23 The doctrines of champerty and 

maintenance seek to curb powerful intermeddlers from subverting 

the legal process by acquiring an interest in litigation that otherwise 

does not concern them.24 These doctrines—with their attendant 

suspicion of third parties meddling in litigation—trace their roots to 

the English common law.25 But the primary concerns that motivated 

these ancient prohibitions are no longer present in today’s society, 

and to the extent they remain, they are adequately addressed by 

other legal mechanisms.26 Courts have accordingly moved away 

_____________________________________________________________

21 Id. at 700–01 (footnotes omitted).

22 UTAH R. CIV. P. 11(b), (c)(2).

23 133 Cal. Rptr. at 87.

24 See Note, Modern Views of Champerty and Maintenance, 18 HARV.

L. REV. 222, 222–23 (1905) (“The object [of champerty and 

maintenance] was to prevent intimidation of the courts by the great 

lords, who by enlisting in suits in which they had no proper interest, 

overawed courts and juries, and perverted ‘the remedial process of 

the law into an engine of oppression.’” (citation omitted)).

25 In fact, their roots go still deeper, likely back to the concept of 

“sycophancy” in ancient Greece. See Max Radin, Maintenance by 

Champerty, 24 CAL. L. REV. 48, 48–51 (1935).

26 For example, in Saladini v. Righellis, the Supreme Judicial Court

of Massachusetts explained that it “no longer [is] persuaded that the 

champerty doctrine is needed to protect against the evils once feared: 

speculation in lawsuits, the bringing of frivolous lawsuits, or 

(Continued)
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

14

from limiting litigation funding in favor of increasing access to 

justice. This shift recognizes the inherent inequity in allowing a 

citizen’s financial means to curtail his or her ability to vindicate legal 

rights. Our decision in Snow, Nuffer, Engstrom & Drake v. Tanasse to 

uphold the involuntary assignment of legal malpractice claims 

represents one illustration of a broader movement away from 

unduly protecting attorneys at the expense of their clients’ ability to 

access the courts.27 We continue to adhere to that view today, and 

we reject commoditization concerns as misplaced and out of touch 

with the current realities of our society and legal system. We next 

discuss why we do not share other courts’ concerns that allowing 

assignment of legal malpractice claims imperils the sanctity of the 

attorney-client relationship.

B. Concerns About the Effect of Assignment on the “Sanctity of the 

Attorney-Client Relationship”

¶ 27 Courts have expressed concern that allowing the assignment 

of legal malpractice claims will “embarrass the attorney-client 

relationship and imperil the sanctity of the highly confidential and 

fiduciary relationship existing between attorney and client.”28

 

financial overreaching by a party of superior bargaining position.”

687 N.E.2d 1224, 1226 (Mass. 1997). The court reasoned that “[t]here 

are now other devices that more effectively accomplish these ends.”

Id. at 1226–27. As examples of these other devices, the Saladini court 

pointed to that jurisdiction’s rules of professional conduct and rule 

11 of its rules of civil procedure. Id. at 1227. 

We also note that it is not at all clear why an investor would 

choose to purchase a lawsuit that appeared to be frivolous. See

Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 104–05 

(Tex. App. 2006) (“It is doubtful that litigation funding agreements,

. . . in which the investor has no right to repayment unless the 

plaintiff receives a recovery, serve to increase litigation. Presumably, 

prior to making an investment . . . , an investor would consider the 

merits of the suit and make a calculated risk assessment on the 

probability of a return on its investment. An investor would be 

unlikely to invest funds in a frivolous lawsuit, when its only chance 

of recovery is contingent upon the success of the lawsuit.”).

27 1999 UT 49, ¶ 13 (“We are reluctant to permit the denial of 

access to our courts by persons asserting negligence claims against 

lawyers in this fashion.”).

28 Goodley, 133 Cal. Rptr. at 87.
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Opinion of the Court

15

Concerns regarding the attorney-client relationship often trace back 

to Picadilly, Inc. v. Raikos, where the Indiana Supreme Court 

described two problems it concluded would arise if these 

assignments were permitted: 1) the fear of assignment would cause 

attorneys to temper their zealous advocacy; and 2) the assignment 

would interfere with the attorney-client privilege.29 We are not 

persuaded by either justification.

1. Concerns that Attorneys Will Temper Their Zealous Advocacy

¶ 28 The Picadilly court expressed concern that “[a]n attorney’s 

loyalty is likely to be weakened by the knowledge that a client can 

sell off a malpractice claim, particularly if an adversary can buy it.”30

According to this line of reasoning, the knowledge that a legal 

malpractice claim could be assigned will become “an important 

bargaining chip” in settlement negotiations.31 Courts have also 

suggested that permitting assignment would allow an adversary to 

“drive a wedge” between client and attorney “by creating a conflict 

of interest.”32 We find none of these concerns persuasive.

¶ 29 Regarding zealous advocacy, the Picadilly court suggested 

that 

If an attorney is providing zealous representation to a 

client, the client’s adversary will likely be motivated to 

strike back at the attorney in any permissible fashion. If 

an adversary can retaliate by buying up a client’s 

malpractice action, attorneys will begin to rethink the 

wisdom of zealous advocacy.33

We find this reasoning tenuous. A number of courts have described 

this concern as “farfetched,”34 and we agree.35 We are not convinced 

_____________________________________________________________

29 582 N.E.2d 338, 342 (Ind. 1991).

30 Id.

31 Id. at 343.

32 Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 317 (Tex. App. 

1994). 

33 Picadilly, 582 N.E.2d at 342.

34 New Hampshire Ins. Co., 707 N.E.2d at 336–37 (“It is farfetched to 

imagine that a lawyer will be discouraged from zealously 

representing a client out of fear that the client may later offer a 

malpractice action against the lawyer as a part of the resolution of 

(Continued)
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

16

that attorneys will “strike back” at their adversaries by obtaining and 

prosecuting unmeritorious legal malpractice actions. If they do so, 

they face not only the bulwark of rule 11, but the threat of 

professional sanctions for violating the rules of professional 

conduct.36 The desire to “strike back” does not seem likely to 

outweigh these significant deterrents. Further, the concern that 

attorneys will temper their zeal fails to account for the fact that 

attorneys are ethically obligated to act “with zeal in advocacy upon 

the client’s behalf.”37 We find it unlikely that an attorney would 

choose not to zealously pursue a client’s claims out of fear of 

assignment for the simple reason that by doing so the attorney 

would likely be giving the client grounds for bringing a malpractice 

claim.

¶ 30 We are also unconvinced by the concern regarding conflicts 

of interest. Courts have suggested that, as soon as the topic of

assigning a legal malpractice claim rears its head in settlement talks, 

 

another case.”); Gregory v. Lovlien, 26 P.3d 180, 184 n.6 (Or. Ct. App. 

2001) (“We note, as [other] courts have, that some of the concerns 

that typically are cited appear overstated. . . . [T]he risk that a future 

assignment of the client’s malpractice claim to an adversary will 

temper an attorney’s present representation of his or her client seems 

remote at best. It may ensure that the attorney provides better 

representation.”).

35 Commentators, too, have criticized this argument. See, e.g., 

Kevin Pennell, Note, On the Assignment of Legal Malpractice Claims: A 

Contractual Solution to a Contractual Problem, 82 TEX. L. REV. 481, 498 

(2003) (“The major flaw in this argument is that it assumes that 

parties will not act rationally when settling their disputes. . . . [I]f all 

parties behave rationally, then a legal malpractice claim against an 

attorney who has zealously and effectively represented his client is 

worth nothing. An attorney who fears his client will assign his legal 

malpractice claim to the client’s adversary will thus have more 

incentive to zealously represent his client, not less.”).

36 UTAH R. PROF’L CONDUCT 3.1 (“A lawyer shall not bring or 

defend a proceeding, or assert or controvert an issue therein, unless 

there is a basis in law and fact for doing so that is not 

frivolous . . . .”).

37 UTAH R. PROF’L CONDUCT 1.3, cmt 1 (“A lawyer must act with 

commitment and dedication to the interests of the client and with 

zeal in advocacy upon the client’s behalf.”).
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Opinion of the Court

17

attorneys will be forced to send their clients to receive the 

independent advice of another lawyer because of the conflict of 

interest inherent in advising a client on the propriety of a settlement 

involving the assignment of a legal malpractice claim.38 We 

understand the forces animating this concern, and we recognize that 

the need to bring in separate counsel could increase the expense for 

parties seeking to negotiate settlement of their disputes. But the 

assignment of a legal malpractice claim may be a pertinent 

consideration for the parties to the settlement agreement, and if an 

attorney would be exposed to a conflict of interest necessitating the 

services of an independent attorney to advise the client on the 

settlement offer, then that is a necessary cost of litigating a dispute. 

Foreclosing this option by prohibiting assignment would frustrate 

opposing counsel’s ability to highlight the potential malpractice of 

an adversary. 

¶ 31 This case illustrates the benefits that would be lost by 

prohibiting assignment: the adversary, who may be in the best 

position of all to investigate and discover the legal malpractice of an 

opponent, can negotiate with the victim in a way that allows the 

victim to recognize the value of its legal malpractice claim. We fail to 

see how the additional expense that could be incurred if conflicts 

arise outweighs the benefits that attend permitting such 

assignments. 

2. Concerns that Permitting Assignment Will Do Violence to the 

Attorney-Client Privilege

¶ 32 The Picadilly court also expressed concern that allowing 

assignment could strain attorneys’ duty to maintain client 

confidentiality. One court reiterated the concern as follows:

[T]he Picadilly court observed that once a client sues his 

attorney, the attorney is permitted to disclose 

confidential client information that is reasonably 

necessary to establish a defense. So long as the client 

maintains control over the suit, the scope of the 

_____________________________________________________________

38 Picadilly, 582 N.E.2d at 343 (“An adversary might well make a 

favorable settlement offer to a judgment-proof or financially 

strapped client in exchange for the assignment of that client’s right to 

bring a malpractice claim against his attorney. Lawyers involved in 

such negotiations would quickly realize that the interests of their 

clients were incompatible with their own self-interest.”).
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

18

disclosure can be limited by the client’s power to drop 

the claim. Once the client assigns the claim, the client’s 

control over the litigation is lost, but the attorney’s 

right to defend by revealing client information 

survives.39

¶ 33 But this concern overlooks the fact that the client waives—to 

an extent—the attorney-client privilege by bringing a legal 

malpractice claim.40 The waiver is no broader whether it is the client 

or the client’s assignee bringing the malpractice claim.41 We expect 

that those courts that have expressed concern about the attorneyclient privilege may have been concerned about overbroad waivers, 

but our rules of professional conduct specifically delineate the scope 

of waiver for defending against a legal malpractice claim,42 and we 

see no reason to go beyond that by outright prohibiting the 

assignment of the claim. Concerns regarding the attorney-client 

privilege are just as likely to be implicated when a legal malpractice 

claim is involuntarily assigned through the bankruptcy process, but 

we have concluded such transfers do not violate public policy as a 

general matter.43 We likewise do not see the attorney-client privilege 

concerns as justifying a barrier to voluntary assignments. 

¶ 34 In short, concerns regarding the attorney-client relationship 

do not justify a blanket prohibition on the assignment of malpractice 

_____________________________________________________________

39 Kommavongsa, 67 P.3d at 1074.

40 UTAH R. PROF’L CONDUCT 1.6(b)(5) (“A lawyer may reveal 

information relating to the representation of a client to the extent the 

lawyer reasonably believes necessary: . . . to establish a claim or 

defense on behalf of the lawyer in a controversy between the lawyer 

and the client . . . or to respond to allegations in any proceeding 

concerning the lawyer’s representation of the client.”).

41 Kommavongsa, 67 P.3d at 1078 (“Although certainly a client who 

assigns the legal malpractice claim loses control over the lawsuit, 

and cannot drop the lawsuit upon realizing the full extent of the 

waiver, the waiver itself is no broader if the claim is assigned than if 

the client brings the lawsuit himself or herself—the attorney must 

still preserve those confidences and secrets that are not reasonably 

necessary to the defense of the claim.”).

42 Supra ¶ 33 n.40.

43 See Tanasse, 1999 UT 49, ¶ 13.
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Opinion of the Court

19

claims. Next we discuss why we likewise do not see the opportunity 

and incentive for collusion to be intolerable.

C. Concerns Regarding the Opportunity and Incentive for Collusion

¶ 35 Courts have expressed concern that permitting the 

assignment of legal malpractice claims yields too fertile an 

environment for collusion. Courts have reasoned that “[p]ermitting 

an assignment of a legal malpractice claim to the adversary in the 

underlying litigation that gave rise to the legal malpractice claim . . . 

creates the opportunity and incentive for collusion in stipulating to 

damages in exchange for an agreement not to execute on the 

judgment in the underlying litigation.”44 The concern is that, 

“[b]ecause 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.”45

¶ 36 While courts have phrased the question broadly—whether 

any assignment “to an adversary in the underlying litigation” must 

be prohibited as fostering an opportunity for collusion—a close 

inspection of these cases reveals that they invariably involve the 

following: 1) a defendant in the underlying case stipulating to a 

consent judgment; 2) an assignment of a legal malpractice claim 

against the defendant’s litigation counsel; and 3) a promise not 

enforce the judgment as long as there is cooperation in the 

malpractice action.46

_____________________________________________________________

44 Gurski v. Rosenblum & Filan, LLC, 885 A.2d 163, 174 (Conn. 

2005).

45 Edens Techs., LLC v. Kile Goekjian Reed & McManus, PLLC, 675 F. 

Supp. 2d 75, 79 (D.D.C. 2009).

46 See, e.g., id.; Skipper v. ACE Prop. & Cas. Ins. Co., 775 S.E.2d 37, 38

(S.C. 2015) (“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. . . . 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.”).
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

20

¶ 37 We first note that we are not faced with such an 

arrangement here. In this case, there is no contractual term providing 

that the City will owe nothing to Cedar Valley if it signs over its 

legal malpractice claim. We cannot see how the opportunity and 

incentive for collusion are intolerably strong where the defendant in 

the underlying proceeding still feels the sting of the original 

judgment.47 If the assignor does not obtain a promise that the 

assignee will not execute, its incentive to collude is drastically 

diminished, because the assignor will remain responsible for the 

judgment. 

¶ 38 So the most realistic collusion concerns are not present here. 

But even if they were, we do not view this concern as necessitating a 

blanket ban on assignment. To do so, we would have to ignore our 

legal system’s significant procedural safeguards that operate to 

expose and extinguish unmeritorious claims. We have discussed a 

number of these above, and we reiterate them briefly here. 

¶ 39 As noted above, rule 11 operates to cull frivolous lawsuits 

and impose sanctions on parties and attorneys who foster them.48

Second, a party who brings a malpractice action that is the product 

of collusion will have to survive motions to dismiss and for 

summary judgment. Even if the claim can survive these procedural 

gatekeepers, the plaintiff bringing the collusive suit will have to face 

the jury, and the facts regarding the opportunity and incentive for 

collusion will be on full display. Attorneys who bring collusive, 

frivolous claims will be subject to ethical repercussions.49

¶ 40 We have confidence that these serious deterrents are 

sufficient to discourage attorneys considering concocting a scheme to 

inflate damages and then bring a legal malpractice action against a 

former adversary’s attorney. To conclude that the assignment of 

_____________________________________________________________

47 See, e.g., Edens, 675 F. Supp. 2d at 79 (“Edens had no incentive 

to contest the extent of damages, because as long as it secured from 

Golf Tech a promise not to execute on the judgment, Edens would 

never have to pay anything. It is evident from the Settlement 

Agreement that there was no reason for Edens to try to minimize

damages.”).

48 See supra ¶ 25. 

49 UTAH R. PROF’L CONDUCT 3.1 (“A lawyer shall not bring or 

defend a proceeding, or assert or controvert an issue therein, unless 

there is a basis in law and fact for doing so that is not 

frivolous . . . .”).
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Opinion of the Court

21

legal malpractice claims must be prohibited assumes that our legal 

system is insufficient to ferret out unmeritorious claims. We are not 

so skeptical of the process that we would ban these assignments out 

of fear of potential collusion.

D. Concerns Regarding a Public Loss of Respect for the Legal System

¶ 41 Finally, courts have expressed concern that the public may 

lose respect for the legal system if they observe lawyers 

“shameless[ly] shift [] positions” between an underlying action and a 

subsequent malpractice trial.50 The problem arises when the assignee 

of a legal malpractice claim attempts to prove causation. To do so, 

the assignee must prove that the judgment it obtained in the 

underlying proceeding was obtained solely due to the malpractice of 

litigation counsel in that underlying case, and not because the 

defendant was indeed liable. 

¶ 42 To illustrate, consider a personal injury action. After 

securing a judgment against the defendant, the plaintiff promises not 

to execute on it in exchange for the defendant’s assignment of a 

malpractice action based upon the defendant’s attorney’s 

purportedly negligent conduct in that action. The subsequent 

malpractice action’s trial-within-a-trial will feature the assignee 

attempting to show that, but for the defendant’s attorney’s negligent 

performance in the underlying case, no judgment would have been 

obtained. That would require the plaintiff to show that the defendant 

was not negligent, or that the defendant’s negligence did not cause 

the plaintiff’s injury—diametrically opposite positions to those taken 

in the underlying suit.51

¶ 43 Courts have identified this switch of positions as intolerable 

because in their view it demeans the legal profession. One court 

expressed the concern as follows: 

[T]he “trial within a trial” that necessarily characterizes 

most legal malpractice claims arising from the same 

litigation that gave rise to the malpractice claim would 

lead to abrupt and shameless shift of positions that 

would give prominence (and substance) to the 

perception that lawyers will take any position, 

depending upon where the money lies, and that 

_____________________________________________________________

50 See, e.g., Zuniga, 878 S.W.2d at 318. 

51 See id.
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

22

litigation is a mere game and not a search for truth, 

thereby demeaning the legal profession.52

Courts have expressed concern that jurors seeing such a position 

shift “would rightly leave the courtroom with less regard for the law 

and the legal profession than they had when they entered.”53

¶ 44 We note first that the identified “shameless shift of 

positions” is not present in all legal malpractice assignments. “The 

fact that an attorney might be called on to defend against an 

assigned malpractice claim does not always mean that the attorney’s 

former adversary will compromise the strength of his underlying 

claim, resulting in some sort of role reversal which diminishes public 

confidence in the legal profession.”54 Even the Picadilly court—one of 

the first to raise this concern—recognized that “[s]hifts in position 

are inevitable as long as clients are allowed to bring malpractice 

claims, and attorneys are permitted to fight them.”55

¶ 45 The case before us does not feature a shameless shift of 

positions. Here, no attorney needs to take a position directly 

contrary to one argued earlier. The attorneys defending Parsons 

Kinghorn may present the same theory of the Capacity Purchase 

_____________________________________________________________

52 Kommavongsa, 67 P.3d at 1078.

53 Picadilly, 582 N.E.2d at 345.

54 New Hampshire Ins. Co., 707 N.E.2d at 337. The New Hampshire 

Ins. Co. court went on to recognize that 

It could be argued just as forcefully that, providing shelter for 

attorneys by prohibiting the voluntary assignment of malpractice 

claims, would actually diminish public confidence in the 

profession by creating the perception that the system provides 

attorneys with unjustified special protection. . . . “Rather than 

helping the image of the legal profession, a rule of nonassignability would give the impression that the profession has 

something to hide, that the courts are taking care of their own. A 

more favorable image will be projected by an acknowledgement 

that [the legal] profession, like any other, must face its problems 

and answer its accusers. Vindication after a full airing of the facts 

is a much better result than the suspicion that would follow a 

suppression of the facts.”

Id. (second alteration in original) (citations omitted).

55 582 N.E.2d at 345 n.10.
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Opinion of the Court

23

Agreement that Parsons Kinghorn advised the City to take regarding 

the City’s contractual obligations. And Snell & Wilmer may continue 

to advocate the same theory of that contract that it advised Cedar 

Valley to take. So no attorney will be required to advocate for a 

position that he or she did not advocate for in the underlying case. 

The only role reversal here is by the City, the alleged malpractice 

victim. And though the City is switching positions, this is the kind of 

switch that, as the Picadilly court recognized, is inherent in a legal 

malpractice action. There is nothing shameless or disreputable about 

a client who was the victim of an attorney’s negligent advice 

repudiating the position that it took as a result of that bad advice. 

¶ 46 Further, we are not persuaded that the concern about 

position shifting is significant enough to ban altogether the 

assignment of legal malpractice claims. As a practical matter, an 

attorney who shifts positions can expect to have that shift 

highlighted for the jury.56 The exposure of the shift of positions 

would present a significant risk of the jury concluding that no 

malpractice had occurred. So an attorney who plans to so shift 

positions would need a convincing explanation to account for the 

shift in positions. That explanation may well ameliorate whatever 

loss of respect a jury might otherwise experience.

¶ 47 In sum, the public policy concerns that have been voiced by 

courts on the subject of assigned legal malpractice claims are not 

present on these facts. But even if they were, we are not persuaded 

that these concerns are sufficiently clear and compelling to justify 

prohibiting the assignment of legal malpractice claims. 

Conclusion

¶ 48 We conclude that the rationales that have been offered 

against the assignment of legal malpractice claims are unpersuasive 

in view of our jurisdiction’s procedural safeguards, including our 

rules of civil procedure and rules of professional conduct. We 

accordingly hold that legal malpractice claims are presumed to be 

voluntarily assignable. We do not foreclose, however, the possibility 

that a future case could present an assignment that violates clearly 

defined and compelling public policy concerns and therefore be 

deemed invalid. The contractual arrangement between the City and 

_____________________________________________________________

56 See Pennell, supra ¶ 29 n.35 at 502; Michael Sean Quinn, On the 

Assignment of Legal Malpractice Claims, 37 S. TEX. L. REV. 1203, 1233 

(1996).
EAGLE MOUNTAIN v. PARSONS KINGHORN

Opinion of the Court

24

Cedar Valley does not implicate any such concerns. We therefore 

reverse the grant of summary judgment and remand for further 

proceedings.