A Tort in Search of a Remedy: Prying Open the Courthouse Doors for Legal Malpractice Victims

Fordham Law Review, Sep 2017

Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide them access to meaningful redress.

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A Tort in Search of a Remedy: Prying Open the Courthouse Doors for Legal Malpractice Victims

A Tort in Search of a Remedy: Prying Open the Courthouse Doors for Legal Malpractice Victims Susan S. Fortney 0 1 2 0 Texas A&M University School of Law , USA 1 This Colloquium is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information , please contact 2 Part of the Law and Society Commons, Legal Ethics and Professional Responsibility Commons , Legal Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Remedies Commons, and the Torts Commons Recommended Citation Susan S. Fortney, A Tort in Search of a Remedy: Prying Open the Courthouse Doors for Legal Malpractice - Article 6 The rule of law and access to justice go hand in hand. International-law expert Professor Francesco Francioni describes the connection as follows: In international law, as in any domestic legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is violated, access to justice is of fundamental importance for the injured individual and it is an essential component of the system of protection and enforcement of human rights.1 The Canadian Bar Association Access to Justice Committee takes a similar approach, explaining that justice “ensures fairness and equality for all, and respect for all who come before it. Being accorded respect from a justice system means being heard and provided with an effective, meaningful outcome.”2 Using this broad connotation of justice, this Article questions whether many victims of legal malpractice3 are denied access to justice. In writing * Professor of Law and Associate Dean for Research and Faculty Development, Texas A&M University School of Law. Professor Fortney thanks Professor Bruce Green and the members of the Fordham Law Review for their assistance and for including her in the fascinating colloquium entitled Civil Litigation Ethics at a Time of Vanishing Trials held at Fordham University School of Law. For an overview of the colloquium, see Judith Resnik, Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes, 85 FORDHAM L. REV. 1899 (2017). 1. Francesco Francioni, The Rights of Access to Justice Under Customary International Law, in ACCESS TO JUSTICE AS A HUMAN RIGHT 1 (Francesco Francioni ed., 2007). 2. ACCESS TO JUSTICE COMM., CANADIAN BAR ASS’N, REACHING EQUAL JUSTICE REPORT: AN INVITATION TO ENVISION AND ACT 62 (2013), http://www.cba.org/ CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/EqualJustice FinalReport-eng.pdf [https://perma.cc/9V8M-8JUS]. This definition illustrates how authors around the world take a comprehensive view when discussing access to justice. In the United States, the term “access to justice” often refers to access to affordable legal services. See, e.g., Access to Justice, U.S. DEP’T JUST., https://www.justice.gov/atj (last visited Mar. 2 5, 2017 ) [https://perma.cc/MN4P-R5GC]. In discussing access to justice, this Article takes the more inclusive global position on the term “access to justice.” 3. This Article uses “legal malpractice” as an umbrella term to cover a range of professional liability claims against attorneys, including claims based on negligence, breach of fiduciary duty, and intentional torts. See SUSAN SAAB FORTNEY & VINCENT R. JOHNSON, LEGAL MALPRACTICE LAW: PROBLEMS AND PREVENTION 19 (2d ed. 2015). about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.”4 Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide them access to meaningful redress. The economics and common law rules relating to legal malpractice claims present significant challenges for persons injured by lawyers’ acts or omissions. Both scholars and practitioners have examined the obstacles that a legal malpractice plaintiff must overcome. For example, a number of plaintiffs’ attorneys have posted online commentaries discussing the practical problems malpractice plaintiffs face, as well as the dynamics and legal principles that impede their ability to prevail and to collect judgments and settlements.5 In addition, various scholars have published articles examining specific issues that make it difficult for plaintiffs to recover in legal malpractice cases.6 Notably, Professors Lawrence W. Kessler and Benjamin Barton provide context for why and how the legal system favors (...truncated)


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Susan S. Fortney. A Tort in Search of a Remedy: Prying Open the Courthouse Doors for Legal Malpractice Victims, Fordham Law Review, 2017, pp. 2033, Volume 85, Issue 5,