Lawyer Can't Sue Lawyer for Fraud Based on "Approval" of Agreement

This is not a wage and hour issue, but it struck me as being so ridiculous that I had to write about it.

The signature block on a contract bears an attorney signature under the legend “approved as to form and content.” Does that signature amount to an actionable representation to an opposing party's attorney? We conclude that it does not.

Thus starts the Second District Court of Appeal's decision in Freedman v. Brutzkus, ___ Cal. App. 4th ___, 2010 WL 820478 (March 11, 2010). Mr. Brutzkus represented a client in negotiating a trademark licensing agreement. Mr. Brutzkus and the other party's counsel, Mr. Freedman, executed the agreement under the line, "Approved as to Form and Content." After the agreement fell apart, Mr. Freedman sued Mr. Brutzkus, alleging that:

Brutzkus made an actionable representation to Freedman as to the accuracy of the agreement. Freedman pled causes of action for intentional misrepresentation, fraudulent concealment, and fraudulent inducement that rested on Brutzkus's alleged misrepresentation in approving the agreement “as to form and content.” The trial court sustained respondents' demurrer as to all causes of action without leave to amend, and entered judgment for respondents. Freedman filed a timely

appeal from the judgment.

Slip op. at 4.

We conclude that the only reasonable meaning to be given to a recital that counsel approves the agreement as to form and content, is that the attorney, in so stating, asserts that he or she is the attorney for his or her particular party, and that the document is in the proper form and embodies the deal that was made between the parties.

Slip op. at 5-6.

Even though the Court of Appeal came to the (obviously) correct conclusion, maybe it is time that we as lawyers reconsider "approving" our clients' agreements. What are we approving, anyway? I don't want to get into a Roseanne Roseannadanna-style rant, but what's the point? It's the parties' agreement, not the attorneys'. We as lawyers give our best advice, but at the end of the day, it's the client who has to decide whether to enter into a particular agreement or not. The lawyer's "approval" adds nothing.

Court of Appeal Does an Emily Litella

Do you remember Emily Litella? The brilliant and amazing Gilda Radner played her on Saturday Night Live's Weekend Update. She would come in and say things like, "What's all this fuss about Soviet Jewelry?" or "What's all this fuss about violins on television?"

The Court of Appeal just had a real Emily Litella moment. Last week, I blogged about Martorana v. Marlin & Saltzman, holding that a class member who fails to submit a settlement claim form can't sue class counsel. Yesterday, the Court modified its decision. Here is the full text of the modification:

On pages 2 and 3, the last sentence: "After several years of litigation, the parties in the Sekly action agreed to a class action settlement totaling $1.2 million." The sentence should read: "after several years of litigation, the parties in the Sekly action agreed to a class action settlement totaling $120 million."

"Oh. That's different."