Legal Engagement Contract Turned Lawyers into “Puppets” and Prevented Malpractice Action

Non-practicing San Francisco lawyer Curtis Kekoa Jr. wanted to maintain final control over everything his divorce lawyer, Robert Sprague did for him during his divorce proceeding. So Kekoa insisted on including a “control provision” in the contract by which he retained Sprague.

Seven months into Sprague’s representation of Kekoa, the two men parted ways and ultimately Sprague sued Kekoa for unpaid legal fees. Kekoa tried to counter-sue for malpractice or breach of fiduciary duty, but the San Francisco Superior Court held that Kekoa could not file such a countersuit. The Court determined that the “control provision” of Kekoa’s contract implied that he and Sprague had an employer/ employee relationship that prevented a malpractice action. San Francisco’s 1st District Court of Appeal agreed in an unpublished decision earlier this month, finding that the provision turned lawyers into “mere puppets.”

Perhaps it did not help matters that the Appellate Court just didn’t seem to like Kekoa very much, declaring him a vexatious litigant and sanctioning both him and his appellate attorney a combined $35,000 for trying to disqualify the appellate panel three times and unduly lengthening the malpractice suit against Sprague. “The record persuades us Kekoa is not maintaining this appeal in the genuine belief he can eventually succeed in this case,” wrote the appellate court, “but due to his desire to delay and harass.”