dissenting.
The contract entered into between plaintiff and defendants called for defendants to receive 33V3%, plus expenses, of any recovery in the wrongful death action. The lawyers collected fees amounting to at least 42.6% and arguably, as much as 55% of the settlement.
Plaintiff’s complaint is grounded on allegations of breach of fiduciary obligation and negligence. In my view, these contentions adequately state a cause of action for attorney malpractice. See, generally, R. Miller & J. Smith, Legal Malpractice, ch. 11 (3d ed. 1989) (fiduciary duties); see Hodges v. Carter, 239 N.C. 517, 519-20, 80 S.E. 2d 144, 145-46 (1954) (negligence). I do not agree that this new and separate cause of action constitutes a collateral attack by plaintiff upon the settlement.
I would reverse the judgment of the trial judge and, accordingly, I dissent.