(dissenting) — Today the majority adopts a rule of law to protect lawyers among all the professions— that is only lawyers—from malpractice claims where the claim has been assigned. The majority adopts this rule protecting our own, members of the bar, from such suits based on public policy grounds which are in fact not exclusive to the legal profession. The confidentiality and fiduciary aspects cited by the majority apply as well to many professionals including physicians, accountants, psychiatrists, psychologists, counselors, clergy, bankers, brokers, and investment consultants. None of these are privy to the special immunity against assigned claims granted here to lawyers.
To support its public policy concern, the majority invokes the legal profession’s sacred cow—access to justice. The argument is that lawyers may be unwilling to accept cases if they might face malpractice liability in an assigned claim. The same argument could be made for any other professional, yet there is no concern that patients might face an access to medical care problem, surely as concerning to the public as access to justice.
The majority makes much of the opportunity for collusion in an assigned claim. Yet there is not the slightest hint in this record that the judgment for these claimants was a product of collusion. Sivilay Nammathao sustained a severe brain injury and remains in a vegetative state. Her daughter, Napha, suffered a concussion, internal injuries and fractures of the leg and pelvis and will grow up without the companionship of her mother. On September 9, 1999, the court entered judgments nunc pro tunc against Khamchanh Soratsavong, setting damages in excess of $12,000,000 for Sivilay and in excess of $171,000 for Napha. This action *319required formal proof of damages to the court. Pursuant to CR 55(b)(2) when the amount is uncertain, the court must enter findings and conclusions supporting the amount claimed. After the default was entered when the defendant settled with the plaintiffs, because the settlement was for a minor and an incompetent, the law required that the court approve the settlement. SPR 98.16W.
Until 1982, the opportunity for collusion was used as an excuse to prohibit recovery under insurance policies where the injuries were caused by the negligence of a family member. This notion was debunked in Mutual of Enumclaw Insurance Co. v. Wiscomb, 97 Wn.2d 203, 209-10, 643 P.2d 441 (1982), where the insurer claimed the exclusion was necessary to protect the insurer from collusive lawsuits among family members. “This argument is wholly unpersuasive because the exclusion far exceeds the evil which it is designed to protect against; collusion and fraud are the exception rather than the rule.” Id. at 210; see also Freehe v. Freehe, 81 Wn.2d 183, 189, 500 P.2d 771 (1972) (rejecting the doctrine of intrafamily tort immunity in favor of individualized judicial determinations on issues which may involve intrafamily fraud or collusion). Under the circumstances of this case as well, disallowing assignment altogether because of possible (but unclaimed) collusion flies in the face of public policy rather than supporting it. Concerns about collusion can be addressed in any case, including one where there in an assigned claim. The court is not without recourse where there is an actual charge of collusion.
The majority concedes that the test for assignability in Washington is whether the cause of action would survive to the personal representative of the assignor upon his or her death. If it does, the action is assignable. Majority at 295. Under the survival statute, a legal malpractice claim survives the death of the assignor and therefore meets the test of assignability in Washington.
The case of Picadilly, Inc. v. Raikos, 582 N.E.2d 338, 340 (Ind. 1991) is the centerpiece of the public policy argument *320advanced by the majority. However, this is a fatal selection because the Indiana court rejected common law rules of survivability which “may have outlived their usefulness” according to the majority. Majority at 297. In Washington, however, the test is statutory, a product of clear, contemporary legislative intent.
The survival statute provides:
All causes of action by a person or persons against another person or persons shall survive to the personal representatives of the former and against the personal representatives of the latter, whether such actions arise on contract or otherwise, and whether or not such actions would have survived at the common law or prior to the date of enactment of this section: PROVIDED, HOWEVER, That the personal representative shall only be entitled to recover damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased ....
RCW 4.20.046(1). A legal malpractice claim survives the death of the assignor and is assignable in Washington.
The Picadilly court utilized its constitutional exclusive original jurisdiction over matters relating to the practice of law to justify making public policy decisions about what is best for the legal profession. Majority at 297-98. Washington enjoys the same position with respect to the legal profession. Former RLD 2.1 (1983). That this court can make special rules for the legal profession is unchallenged. Rather, the question is should this court exempt the legal profession from assigned litigation where such exemption is not enjoyed by any other profession.
The Picadilly court premised its public policy exception on a supposition that where a malpractice claim is assigned the duties of an attorney of loyalty and confidentiality would be weakened. However, the assignment of a malpractice action really has no bearing on this at all. It is the fact that the lawyer is sued at all for an alleged malpractice that destroys the duty of loyalty and confidentiality. Where a malpractice claim arises, the client believes that the attorney has already violated a duty owed to the client, and the *321relationship has been severely compromised. “Where the attorney has caused harm to his or her client, there is no relationship that remains to be protected.” Hedlund Mfg. Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 526, 539 A.2d 357 (1988). Rather than harming the attorney client relationship, permitting assignment may require the individual attorney to even more zealously endeavor to fulfill each of the duties owed to the client.
Furthermore, despite the personal nature of the relationship, the injuries suffered by the client are pecuniary in nature. There is no reason the injured client should not realize the value of his or her “malpractice claim in what may be the most efficient way possible, namely, its assignment to someone else with a clear interest in the claim who also has the time, energy and resources to bring the suit.” Thurston v. Cont'l Cas. Co., 567 A.2d 922, 923 (Me. 1989).
Whether the suit is brought by the former client or an assignee is immaterial concerning confidences. The majority says, “[o]nce 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.” Majority at 299. This is true, but it is the client who should be able to make that choice at the time of assignment. Because some confidence might be divulged is not a justification to deprive the client of the right to assign the claim. Legal claims are a form of property and people are allowed to dispose of their property as they see fit, as long as the rights of others are not violated or outrageous waste committed. Michael Sean Quinn, On the Assignment of Legal Malpractice Claims, 37 S. Tex. L. Rev. 1203, 1243 (1996).
The majority makes much of the problem of a “trial within a trial.” Majority at 300. In a malpractice claim the plaintiff must prove that but for the malpractice the result in the underlying case would have been more favorable. That is true in all malpractice cases and is not impacted in the slightest by whether the claim was assigned. An attorney may indeed be in the uncomfortable position of blaming his former client for conduct which weakened the case in *322order to shift the blame from his or her own negligence. The majority characterizes this as judicial estoppel. Majority at 304. As acknowledged by the majority, there is no problem of judicial estoppel whatsoever in this case because the alleged malpractice was such that the defendant did not get to trial at all on the negligence claim. Majority at 308. Furthermore, if the problem of judicial estoppel is a sufficient ground to disallow the assignment of a malpractice case, why shouldn’t this court just preclude lawyer malpractice cases altogether? The rationale is no different for an assigned case than for one brought directly by the former client.
Finally, the majority cites to the specter of a “ lucrative business of factoring malpractice claims which would encourage unjustified lawsuits against members of the legal profession, generate an increase in legal malpractice litigation, [and] promote champerty ....’” Majority at 307 (quoting Goodley v. Wank & Wank, Inc., 62 Cal. App. 3d 389, 397, 133 Cal. Rptr. 83 (1976)). Even the majority acknowledges that these claims are “overstated.” Majority at 306. Exaggeration in the extreme is more the case. Personal injury cases have traditionally been assignable in Washington State, yet there is no suggestion whatsoever that factoring has occurred at all, let alone factoring in assigned cases. The identical argument could be made by doctors who claim a current malpractice insurance crisis, yet we do not take their plight into account. The assignability or nonassignability is an illusory argument. Because this case should be assignable as would any other case which would survive the death of the assignor, and because this court carves out for lawyers an unwarranted immunity from assigned malpractice litigation, I vigorously dissent.
Bridge and Chambers, JJ., concur with Ireland, J.