A fundamental question presented in the case at bench concerns the duties, if any, which should be recognized between associated counsel during their representation of a common client in order to properly plead a cause of action between such attorneys. The majority opinion applies principles of agency and fiduciary law for the first time to cases which involve lawsuits between cocounsel. Their cited cases, therefore, concern traditional applications of fiduciary and agency principles in cases which do not involve disputes among attorneys.
There is a substantial body of law concerning the liability of attorneys who sue each other in connection with common clients. A fiduciary relationship has not heretofore been recognized, and, regardless of legal theory asserted, there has emerged a recurring theme; a client’s right to the undivided loyalty of his or her attorneys must be protected, even when the result of such rule is the denial of an attorney’s cause of action against another attorney. It is to be noted, however, that research has not revealed cases, which involve a cocounsel dispute as herein.
The majority found that the trial court had properly determined plaintiff was unable to state a cause of action for breach of contract, because the contingency of a recovery in the medical malpractice case failed to occur, and for malpractice, but had incorrectly sustained demurrers as to the remaining causes of action. The problem of ascertaining damages, however, arises whether or not the pleading is based upon contract or tort. There is case authority supporting the sustaining of a demurrer in attorney contingent fee cases, though albeit not cocounsel cases, for the causes of action pleaded by plaintiff except for breach of fiduciary duty.
In contingent fee cases wherein a recovery was eventually obtained lawyers have been permitted to sue one another for a share. (See, e.g., Breckler v. Thaler (1978) 87 Cal.App.3d 189 [151 Cal.Rptr. 50] *946(agreement between lawyers to share fee); Bunn v. Lucas, Pino & Lucas (1959) 172 Cal.App.2d 450 [342 P.2d 508] (award of fees for reasonable value of attorney’s service); Herron v. State Farm Mutual Ins. Co. (1961) 56 Cal.2d 202 [14 Cal.Rptr. 294, 363 P.2d 310] and Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331 [138 Cal.Rptr. 670] (suits for wrongful interference with contractual relationship with a client).
Compensation has been denied, however, in contingent fee cases wherein client recoveries were not obtained. The trial court relied on Fracasse v. Brent (1972) 6 Cal.3d 784 [100 Cal.Rptr. 385, 494 P.2d 9] and Mason v. Levy & Van Bourg (1978) 77 Cal.App.3d 60 [143 Cal.Rptr. 389], in finding that plaintiff failed to allege damages which are recoverable because the contingency of achieving a settlement or favorable jury verdict did not occur. Fracasse denied a wrongfully discharged attorney compensation from his former client for services he rendered pursuant to a contingent fee contract reasoning that because the contingency did not in fact occur no damages had been sustained and public policy would best be served by affording maximum protection to the client vis-á-vis his attorney. For the same reasons the Fracasse court upheld the sustaining of a demurrer without leave to amend as to a cause of action for declaratory relief.
Mason shares many factors in common with the case at bench. Attorney Mason selected the attorney who was to handle the case for his client; the successor attorney allegedly committed a gross error by letting the statute of limitations expire; and the court sustained demurrers as to Mr. Mason’s causes of action for fraud, negligence and breach of contract to recover his lost fee on the contingent fee contract. Basing its decision primarily upon public policy grounds, the court refused to recognize a cause of action in either contract or tort, stating: “It is fundamental to the attorney-client relationship that an attorney have an undivided loyalty to his clients. (See, ABA Code of Prof. Responsibility, canon 5.) This loyalty should not be diluted by a duty owed to some other person, such as an earlier attorney. While, as a practical matter, both the client and former attorney stand to benefit from any recovery in the client’s action, their interests are not identical.... It would be inconsistent with an attorney’s duty to exercise independent professional judgment on behalf of his client to impose upon him an obligation to take into account the interests of predecessor attorneys.
*947“If the law were to recognize duties, such as are suggested here, between successive attorneys representing the same client, a multitude of litigation could be spawned with an attendant adverse impact on attorney-client relationships. Every lawyer could blame his problems in a lawsuit on his predecessors. Every lawyer referring a case to another lawyer would be in a position to claim that the negligence of the second lawyer caused a meritorious claim to be lost or settled for an insufficient amount. Public confidence in the legal system may be eroded by the spectacle of lawyers squabbling over the could-have-beens of a concluded lawsuit, even when the client has indicated no dissatisfaction with the outcome. Considerations of public policy support the conclusion that an attorney’s duty of undivided loyalty to his client should not be diluted by imposing upon him obligations to the client’s former attorney, or at least obligations greater than the client himself owed to the former attorney.” (77 Cal.App.3d 66-67, italics added.)
In terms of Mason’s public policy rationale, I see no logical distinction that should be based on litigants’ status as cocounsel as opposed to successor counsel.1 As in Fracasse v. Brent, the Mason court relied heavily on the premise that the practice of law remains a profession rather than a business, and that the client’s interests must be protected from even the possibility of less than total devotion to his interests by the attorney of his choice. The Mason rationale is also evident in such cases as Norton v. Hines (1975) 49 Cal.App.3d 917 [123 Cal.Rptr. 237] and Goodman v. Kennedy (1976) 18 Cal.3d 335 [134 Cal.Rptr. 375, 556 P.2d 737], which dealt with an attorney’s responsibility to third parties, but also relied on the concept of undiluted responsibility to the client.
Plaintiff requested that his equitable indemnity cause of action for damages consisting of potential liability in the Daniels legal malpractice case be dismissed without prejudice. Although the majority assert that application of agency principles would entitle plaintiff to indemnifica*948tion, it is to be noted that there is a considerable body of case law, arising in numerous contexts, which precludes one attorney from pursuing another for indemnity for his contribution to the harm of a client. (See, e.g., Gibson, Dunn & Crutcher v. Superior Court (1979) 94 Cal.App.3d 347 [156 Cal.Rptr. 326]; Rowell v. Transpacific Life Ins. Co. (1979) 94 Cal.App.3d 818 [156 Cal.Rptr. 679]; Commercial Standard Title Co. v. Superior Court (1979) 92 Cal.App.3d 934 [155 Cal.Rptr. 393]; and Held v. Arant (1977) 67 Cal.App.3d 748 [134 Cal.Rptr. 422].)
Regardless of context, the underlying rationale is similar to that expressed in Mason, that the possibility of a cause of action for indemnity in legal malpractice cases, whether sought against a predecessor or successor attorney, would create such potentially burdensome conflicts of interest for an attorney representing a client, public policy dictates that such a cause of action should be barred. The decisions recognize that such holding is a departure from the general tort principles applicable to joint and successor tortfeasors, but justify the departure on the basis of protecting the attorney-client relationship from the intrusions foreseeable in the area of exercising professional judgment concerning alternative courses of action; surely such independent professional judgment is the most crucial area of expertise which an attorney owes his or her client even in cocounsel cases. The issue presented is one concerning which there is vigorous expression both pro and con; see, e.g., the dissenting opinions in Gibson, Dunn & Crutcher, supra, 94 Cal.App.3d 347, and Parker v. Morton (1981) 117 Cal.App.3d 751 [173 Cal.Rptr. 197],
The majority opinion creates serious inroads into the body of law concerning lawyer disputes which has as its overriding consideration the maintenance of the duty of an attorney to maintain undivided loyalty to his client. In order to maintain this high priority duty between a client and his or her attorney courts have frequently sustained demurrers in attorney lawsuits, thus precluding recovery of lost fees. The majority, by establishing a fiduciary duty between associated attorneys, would require an equal obligation to cocounsel as now exists to the client only. They argue that this creates no unavoidable conflict; I cannot agree. Such a duty would require an associated attorney, for example, to withdraw as counsel if he could not ethically follow the course directed by the selecting attorney. Withdrawal conflicts with many duties to the *949client including those imposed by rule 2-111 of the Rules of Professional Conduct of the State Bar of California which prohibit an attorney from withdrawing as counsel without consent of the court and where the client would be prejudiced. In the case at bench the client during the course of the litigation decided to discharge plaintiff as his attorney. The client has such a right even though the discharge is wrongful (Fracasse v. Brent, supra, 6 Cal.3d at p. 791.) The potential for conflict is manifest. By recognizing a fiduciary duty between cocounsel the exposure of attorneys to liability is increased, thus placing them in an untenable position of divided loyalties to their clients and associated counsel.
To affirm the sustaining of a demurrer without leave to amend due to plaintiff’s inability to properly allege either damages or a fiduciary duty may seem to impose a harsh burden on a wronged attorney. However, in balancing the interests of attorneys in protecting their fees and the public policy of protecting clients’ rights to receive the undivided loyalty of all counsel who represent them, the wiser course is to reject the recognition of a fiduciary duty between cocounsel.
Thus I would extend the principles enunciated in successor attorney contingent fee cases to cocounsel cases and, for public policy reasons, would refrain from finding the necessary element of fiduciary duty exists for purpose of stating a cause of action for breach of fiduciary duty.
A petition for a rehearing was denied July 21, 1981, and respondent’s petition for a hearing by the Supreme Court was denied August 19, 1981.
Assigned by the Chairperson of the Judicial Council.
The relationship in the case at bench was actually one in which Mr. and Mrs. Daniels engaged the services of the original attorney in January 1974 who then referred the matter to plaintiff who prepared and filed the pleadings in February 1974. Plaintiff then associated defendant in May 1976, seven months prior to trial to do discovery and try the case. Plaintiff and defendant became attorneys of record. The contingent fee was to be split among the original attorney, plaintiff and defendant. During early December 1976 Daniels discharged plaintiff. Mr. and Mrs. Daniels then filed an action against plaintiff alone.