The Unchanging Face of Legal Malpractice: How the "Captured

Marquette Law Review, Dec 2002

By Lawrence W. Kessler, Published on 01/01/02

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The Unchanging Face of Legal Malpractice: How the "Captured

The U nchanging Face of Legal Malpractice: How the "Captured" Regulators of the Bar Protect Attorneys Lawrence W. Kessler Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons - Article 2 Over the last century the. legal malpractice tort has remained constant while the rest of the legal world of negligence has been modified to increase duties and influence conduct to conform to our modern sense of fairness. In a century in which consumers of products have been catapulted out of the legal dungeon of "no privity" to the shining sea of strict product liability, in which consumers of medical services have been protected by the creation of an entirely new tort of informed consent, and in which trespassers have been given protections against dangerous conditions, only the consumers of legal services have been left with the meager rights provided by unmodified nineteenthcentury doctrine. The legal malpractice tort, alone, retains defendant protections that have been denied to others. The primary focus of this Article is to identify the dynamic that has prevented the incorporation of modern doctrines of liability into this tort. These doctrines would enhance the ability of those who have been injured by negligent legal services to gain compensation. However, the judicial system, through which malpractice rules regulate the bar, has prevented their adoption. This Article will also propose modifications to these judicially created rules and demonstrate that they lack justification. But no proposal to change such rules, which have withstood the assault of time and vast changes in public perceptions, could succeed unless it identified the factors that have caused them to persist. Without knowing how the legal malpractice tort has withstood the whirlwind of twentieth-century tort reform and remained stagnant * Richard J. Cardali Distinguished Professor of Trial Advocacy, Hofstra University. I am grateful to Barbara Barron, for her comments on this Article, and to Angel Aton and Yolanda Schillinger for assistance with the research. while all else has changed, no changes are likely to be adopted. The simple explanation is that the legal malpractice tort has maintained its unique status because the judicial lawmakers who are supposed to regulate the bar have instead been "captured." Capture is a term developed in the early part of the last century to explain the dynamic through which regulatory agencies often failed to zealously restrict the industries that they were supposed to regulate.1 The term reflects a scenario in which those being regulated gain an undue influence over the regulations.! This Article will treat the subject of regulatory capture as it relates to attorneys, and expose and analyze the degree to which the lawyers who regulate the bar, through their roles as judges, legislators, and advocates, have had their neutrality undermined by over-identification with the legal profession. The doctrine of regulatory capture is not new, but it has not been utilized as a tool to analyze the efficacy of judicial, statutory, and ethical regulation of the bar. By examining discrete malpractice doctrines, this Article will examine the degree to which the bar's regulators have been captured. The goal of the examination is to determine whether the regulators have used their powers to enhance or subvert regulation. The regulators of bar client service provisions are not the type of regulatory agencies that have traditionally been the subject of capture theory.3 They are not minions of some administrative agency. Rather 1. "The idea of agency capture can be traced to a book published by Marver Bernstein in 1955." Thomas W. Merrill, Capture Theory and the Courts: 1967-1983, 72 CHI.-KENT L. REV. 1039, 1060 (1997) (presenting a thorough and insightful analysis of the development and importance of capture theory); see also MARK ALLEN EISNER, REGULATORY POLITICS IN TRANSITION 125 (1993); Richard E. Levy & Robert L. Glicksman, Judicial Activism and Restraint in the Supreme Court's EnvironmentalLaw Decisions, 42 VAND. L. REV. 343, 36468 (1989) (citing numerous selections from environmental law opinions from the 1960s and 1970s reflecting the power of capture doctrines); Matthew L. Spitzer, AntitrustFederalismand Rational Choice PoliticalEconomy: A Critiqueof Capture Theory, 61 S. CAL. L. REV. 1293, 1302-18 (1988); John Shepard Wiley Jr., A CaptureTheory of Antitrust Federalism,99 HARV. L. REV. 713, 723-25 (1986). 2. Merrill, supra note 1, at 1066. Merrill identifies the key features of the capture theory as "a concern with undue industry influence over agency decision-making; the adoption of new common law procedural rules in an effort to open up or 'ventilate' agency processes so as to neutralize this influence; and the underlying commitment to salvaging the New Deal ideals of activist government." Id. 3. Id. at 1060 ("By the time the late 1960s rolled around, agency c (...truncated)


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Lawrence W. Kessler. The Unchanging Face of Legal Malpractice: How the "Captured, Marquette Law Review, 2002, pp. 457, Volume 86, Issue 3,