Appeals Court Puts Burden on Attorneys on Collectibility

A split panel found lawyers are responsible for raising an affirmative defense in legal malpractice claims.

When a client sues a lawyer over failure in a lawsuit, the defendant attorney is the one who bears the burden of proving that a judgment was collectible or not, according to a recent appellate decision.
It’s an issue that could ultimately be decided by the state’s high court if the defendant petitions the justices to review the case, in which the appellate court “encountered a mystery on the road to answering the central question” in Gallegos v. LeHouillier” concerning a “90-year-old, one-and-one-quarter-page Colorado Supreme Court case” in Lawson v. Sigfrid.
On March 23, the Colorado Court of Appeals ruled in Gallegos that attorneys must raise the issue of a judgment’s collectibility as an affirmative defense when facing a breach-of-duty claim based on an unsuccessful outcome in a lawsuit for the client.
While the court found no evidence in the record to support the plaintiff’s claims for collectibility, it also found the trial court erred in putting the burden on Della Gallegos, the plaintiff in the case against attorney Patric LeHouillier and his firm, LeHouillier & Associates, in proving the potential verdict in her favor could be collected from the defendant in the original medical malpractice case. So the appellate court reversed the judgment in favor of Gallegos from the trial court, but also declined to rule completely in favor of LeHouillier by rejecting his claim the burden of proof fell with Gallegos.

To read this story and other complete articles featured in the April 3, 2017 print edition of Law Week Colorado, copies are available for purchase online.