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)