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Judges, not named as Defendants in wrongful discharge claim, are allowed to sue defense attorney

In a very political and hotly disputed ruling, this month the Court of Appeals ruled, in a split decision, that two 48th District Court judges could sue the attorney who represented the Court.  A court clerk, Michelle Horton, had sued the Court for wrongful discharge and the firm of Garan, Lucow, Miller was retained to represent the Court. 

The judges were merely witnesses in the actual proceeding, but as the supervisors of Horton who terminated her employment, they were intimately involved in the proceedings and more than somewhat interested in the outcome.  They did not retain their own counsel, and if they had, their attorney would not have enjoyed standing in the discharge claim, since the judges were not named as parties.

Horton won her discharge claim and was awarded a jury verdict.  The judges then sued the Court's attorneys, arguing that the attorneys had committed malpractice in the defense of the Court.  The trial judge dismissed the Judges' claims, holding that since they were not parties to the lawsuit, had suffered no adverse economic impact, and had not "employed" the attorneys, they did not have "standing" to claim that they were victims of malpractice.

On appeal two judges of the three-judge panel overturned this holding and returned the case to the lower court to proceed.  They based their reversal of the standing issue on their holding that "the relation of attorney and client is one of confidence based upon the ability, honesty, and integrity of the attorney."  The majority felt that the judges' pleadings demonstrated an injury to the judges' reputation allegedly caused by misrepresentations and negligence of the attorneys.  The dissenting judge wrote a terse dissent pointing out that as non-party witnesses, the judges had failed to state a recognized cause of action.

This case will likely reach the Supreme Court where it will be interesting to see the outcome, given the status of the "combatants."  Does a highly-political and conservative majority of the Supreme Court side with one of the most powerful insurance-defense firms in the state, or with a pair of judges?  Stay tuned.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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