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
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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
They are not minions of some administrative agency.
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 capture had come to be
regarded as something more akin to the universal condition of the administrative state.") Id.
For an analysis using capture doctrines as they effect 1967-1983 administrative law, see Mark
Seidenfeld, A Civic Republican Justificationfor the BureaucraticState, 105 HARV. L. REV.
the bar's regulators are primarily the lawyers who sit as judges and craft,
revise, and define the standards of conduct through rulings in legal
malpractice cases, 4 or, the lawyers and legal academics who create the
ethical standards for legal practice
The legal system is dominated by attorneys. Many legislators and
judges are attorneys. When the system devises rules that effect the
relationship between attorneys and clients it subjects itself to special
scrutiny.6 It is a fact of the very structure of legal institutions that the
individuals who create the rules of law can protect themselves and their
colleagues before the bar by slanting the process in favor of the
attorneys. This potential for favoritism should not be ignored. The risk
is especially troubling when the rules are created by common law courts.
Legislatures may be dominated by lawyers, yet they are responsive to
the public through the election process. Judges are protected from this
process.7 Judge-made rules should never appear to unfairly benefit the
4. "The time has come to consider legal malpractice law as part of the system of lawyer
regulation." John Leubsdorf, LegalMalpracticeand ProfessionalResponsibility, 48 RUTGERS
L. REV. 101,102 (1995). "Finally, legal malpractice cases offer courts an unusual opportunity
to effectuate the rules they promulgate by influencing lawyers' conduct. Lawyers read
malpractice decisions, and will heed the possibility of personal liability." Id. at 107-08.
5. The Canons of Professional Ethics were initially adopted by the self-regulating entity
known as the American Bar Association in 1908. See Rory K. Little, Proportionalityas an
Ethical Preceptfor Prosecutorsin Their Investigative Role, 68 FORDHAM L. REV. 723, 741
(1999). In 1969, the same group replaced the Canons with the Model Code of Professional
Responsibility, which contained a "Canons" and "Ethical Considerations" supplement. Id.
These were eventually supplemented with "Disciplinary Rules." Id.
6. See generally JUDITH N. SHKLAR, LEGALISM: LAW, MORALS, AND POLITICAL
TRIALS (2d ed. 1986) (analyzing the degree to which legal rules are political and social
choices and the decisions of courts should be analyzed to determine their political impact);
Ahilan T. Arulanantham, Note, Breaking the Rules?: Wittgenstein and Legal Realism, 107
YALE L.J. 1853 (1998); Brian Leiter, Rethinking Legal Realism: Toward a Naturalized
Jurisprudence,76 TEX. L. REV. 267 (1997); Note, Legal Realism and the Race Question: Some
Realism About Realism on Race Relations, 108 HARV. L. REV. 1607 (1995).
7. Canons of Ethics, for example, prohibit judges from campaigning on legal issues:
A judge or judicial candidate shall not make statements that indicate an opinion on
any issue that may be subject to judicial interpretation by the office which is being
sought or held, except that discussion of an individual's judicial philosophy is
appropriate if conducted in a manner which does not suggest to a reasonable person
a probable decision on any particular case.
Vincent R. Johnson, Ethical Campaigningfor the Judiciary,29 TEX. TECH L. REV. 811,814
8. See generally Merrill, supra note 1, at 1077. Analyzing capture theory which "at least
in the form familiar to judges and legal academics in the 1970s, was about the
Two discrete rules will be closely explored. Both rules favor lawyers
who are charged with legal malpractice. Both rules disadvantage the
consumers of legal services who seek judicial remedies for malpractice.
Legal malpractice doctrines must be the center of any investigation of
the degree to which capture induces rules that favor lawyers because it is
the area in which the self-interest of the bar is most evident. Lawyers
may be affected by laws that are directed at clients. For example, laws
may reduce or increase the amount of fee generating business. But, legal
malpractice litigation places the bar in the role of a party. The rules of
this litigation directly impact the individual attorney litigants. These
particular doctrines have been selected as the fulcrum of the analysis of
potential regulatory capture because they are both important and
technical legal malpractice rules. The importance of the rules is
essential to an analysis of capture. An indicia of capture is the creation
or maintenance of rules that significantly benefit the purportedly
regulated industry.9 Unimportant rules might be maintained, but not
because of capture. Their perpetuation might be the result of
inattention. The technical nature of the rules means that no political
pressures can be identified to explain their existence. If important rules
can be identified that uniquely benefit attorneys, rules that are created
and maintained by those who regulate attorneys, their existence would
be a significant indicator of capture. But, the rules would only
demonstrate capture if they lack rational justifications and if they are
different from those judicially created rules defining the duties of other
professionals. Thus, the justifications that have been given for
maintaining these rules will be examined to determine whether they
reflect the wisdom of neutral regulators or the bias of those who have
disproportionate influence of one type of group-business or producer groups-and
focused.., on the influence that this type of group wielded over one governmental
institution-the administrative agency," Merrill demonstrates the degree to which capture
theory has influenced judicial action and argues its continuing vitality despite the ascendance
of public choice theory. Id. at 1069.
9. An example of capture was found in OSHA regulations that changed over time:
"OSHA may have originally seemed to follow the public-interest theory of regulation, but in
the last several years it has more closely resembled the capture theory; in effect, it seems to
have been co-opted over time so that its policies benefit those it regulates." LARRY N.
GERSTON ET AL., THE DEREGULATED SOCIETY 193 (1998). Capture theorists base their
theoriesion specific investigations of the actual functioning of regulatory agencies: "[A] series
of classiq papers [by] George Stigler (1962, 1964) investigated the impact of the regulation of
electricity prices and the securities markets in the U.S." THE REGULATION GAME 15 (Alan
Peacock. et al. eds., 1984). Thus, capture theory is not an abstract construct, but rather
"capture theory describes actual agency behavior." GERSTON, supra, at 69.
Both doctrines act to limit the amount of the judgment that a
negligent attorney owes her ex-client. One precludes recovery for pain
and suffering, and the other reduces judgments by deducting the amount
of the negligent attorney's fee. It is easy to underestimate the
importance of these two rules, in that they appear to do nothing but
marginally lower the amount of damages. Their existence does not
preclude a judgment against the attorney. Nonetheless, they are critical
because they reduce the size of verdicts or make any collection
extremely difficult." The major significance is that these rules diminish
the incentive to engage in litigation to protect clients' rights. Litigation
is expensive. Tort litigation is generally funded through a
contingentfee arrangement, in which the plaintiff's attorney advances the funds to
pay for the litigation and then recovers them out of the judgment. The
smaller the possible recovery, the more difficult it will be for injured
clients to find attorneys to bring legal malpractice cases. The amount of
money in a judgment represents more than just the compensation to the
individual. It is the fuel that stimulates others to seek legal remedies for
their injuries. The greater the potential recovery, the greater the
number of lawsuits and the greater the effort to modify rules that
protect defendants. 2 The smaller the estimated judgment, the less
10. "Whatever the original guidelines given them, goes the [capture] argument, the
agents get drawn into doing what is in the best interest of those they are regulating-they are,
wittingly or unwittingly, captured by the people they are supposed to be policing .... "
MICHAEL WATERSON, REGULATION OF THE FIRM AND NATURAL MONOPOLY 7 (1988).
11. Malpractice litigation is both a useful and under-utilized mechanism for changing
defendant behavior. There have been a substantial number of proposals designed to enhance
its regulatory impact on the legal profession by encouraging litigation both by increasing the
size of the judgments in legal malpractice actions and through other reforms. See Lawrence
W. Kessler, Alternative Liability in LitigationMalpracticeActions: Eradicatingthe Last Resort
of Scoundrels, 37 SAN DIEGO L. REV. 401, 421, 522 (2000); see also Manuel R. Ramos, Legal
Malpractice:Reforming Lawyers and Law Professors,70 TUL. L. REV. 2583 (1996).
12. The type of aggressive litigation that can be stimulated by the profit incentive is best
seen in attorney-funded litigation against cigarette companies. Glenn Collins, Judge Allows
Big Lawsuit on Tobacco, N.Y. TIMES, Feb. 18, 1995, at Al. A consortium of plaintiff
malpractice attorneys was created to fund a litigation campaign against the cigarette industry.
In 1994 a group of sixty-five law firms committed themselves to invest $100,000 annually per
firm for this purpose. Id.; see also Howard A. Latin, Problem-Solving Behaviorand Theories
of Tort Liability, 73 CAL. L. REV. 677, 679 (1985) (developing an economic analysis of the
mechanism by which different liability rules affect behavior and applying these rules to all
potential defendants and especially to attorneys whose "problem-solving" behavior is
oriented to their personal profit). In a different and quite conceptual paradigm, utilitarian
analysts identify this self-protective conduct as system based efficiencies. See George P.
Fletcher, Fairnessand Utility in Tort Theory, 85 HARV. L. REV. 537, 567-69 (1972). Large
incentive to sue and, consequently, the less effort to reform the law. 3
The causation rule limiting liability for pain and suffering caused by
legal malpractice'4 is based upon the concept that litigation malpractice,
even when it causes an action to be lost, does not significantly enhance
the emotional trauma of the litigation itself. 5 It is a "proximate-cause"
rule. The issue is removed from the jury and is decided by the court as a
matter of law. The jury is not permitted to consider the facts and
determine that the plaintiff has, in fact, suffered. Because pain and
suffering damages can constitute a substantial amount in excess of the
damages for tangible injuries, its exclusion from the legal malpractice
tort severely limits the size of verdicts.
The rule requiring the deduction of the attorney's fee from a legal
malpractice judgment" is another causation rule, specifically a
"causein-fact" rule. Courts have found that it would be inappropriate for the
plaintiff to be compensated for an economic loss that she did not suffer.
Thus, in a personal injury action, if a plaintiff proves that attorney
malpractice caused her to lose a case in which she would have received a
verdict for one hundred thousand dollars, the amount of compensation
would equal the one hundred thousand, less the amount of the
An examination of the justifications given for these rules will
demonstrate that they are unsupportable. The judicial opinions will
then be analyzed to demonstrate that the unstated and unexamined
value judgments which act to perpetuate these lawyer protective
doctrines are the result of capture. The impact of capture will be
revealed, and the Article will urge that these and other similar
capturereflective legal malpractice doctrines be modified.
potential verdicts induce plaintiffs' attorneys to protect the interests of the poor and injured.
Id. Thus, the bar, in its self-interest maximizes the social good. See id.
13. See Patrick E. Tyler, Tobacco-Busting Lawyers on New Gold-Dusted Trails, N.Y
TIMES, Mar. 10, 1999, at A16 (reviewing the impact of huge recoveries on the incentives for
attorneys to pursue specific types of tort reform litigation).
14. See RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL MALPRACTICE § 20.11, at
141 & n.4 (5th ed. 2000) (offering an extensive compendium of case law in thirty states
supporting this proposition).
15. "With some jurisdictional exceptions, the rule is that damages for emotional injuries
are not recoverable if they are a consequence of other damages caused by the attorney's
negligence." Id. at § 20.11, at 141.
16. Abetting this rule is the rule that the client must prove that the underlying judgment
could have been collected. The premise isto prevent a plaintiff from receiving a windfall. The
result, however, is a windfall for the attorney.
II. CAPTURED REGULATORS
Before considering an exotic doctrine such as capture, the simpler
hypothesis of conspiracy must be considered. Lawyers make these rules
and the rules protect lawyers. Courts and legislatures have created and
maintained protections that are now virtually unique to the legal
malpractice tort. The obvious conclusion that these beneficial rules are
the product of an agreement (implicit or explicit) by the regulators to
maintain protections that benefit themselves and their colleagues cannot
be ignored. 7 However, a conspiratorial explanation would mean that
there was some type of communication between the legal
decisionmakers in over fifty discrete jurisdictions'8 over a period of decades. 9 In
17. But, it may not be worthy of substantial consideration. Occam's Razor is defined as:
"[A] scientific and philosophic rule that entities should not be multiplied unnecessarily which
is interpreted as requiring that the simplest of competing theories be preferred to the more
complex or that explanations of unknown phenomena be sought first in terms of known
quantities." WEBSTER'S NEW COLLEGIATE DICTIONARY 816 (9th ed. 1989). The rule is
named after William of Ockham (Occam) and also called "Law of Economy" or "Law of
Parsimony." 8 NEW ENCYCLOPEDIA BRITANNICA 867 (15th ed. 1994).
18. Because each state's judiciary and each state's legislature have independent power to
create rules modifying or creating obligations and duties in tort law, each would have to be
considered discrete jurisdictions. This would create 100 decision-makers without even
considering the federal government.
19. Causation doctrines that beleaguer plaintiffs in legal malpractice actions have been
modified in other types of actions for over a century.
The past forty years have witnessed sweeping reforms in legal doctrines. In tort law
these winds of reform have produced a dramatic expansion in the duty of care.
Common law tort rules that limited the responsibility of economic elites to those
dependant on their conduct were systematically modified or eliminated. For
example, in the 1960s, a manufacturer's duty to the consumer was expanded by the
limitation of the negligence standard and its replacement with strict liability. In the
1970s, a personal injury defendant's favorite defense, the contributory negligence
defense, was replaced by comparative negligence. In the 1980s, the property owner's
bastion of protection against reasonable care requirements-the trespasser, licensee,
and invitee duty classification structure-was eliminated or modified.
Kessler, supra note 11, at 402-03 (citation omitted); see also Lisa Perrochet et al., Lost
Chance Recovery and the Folly of Expanding Medical Malpractice Liability, 27 TORT & INS.
L.J. 615, 615-16 (1992). In medical malpractice actions,
jurisdictions have taken two approaches to allow a patient to sue for damages even
though the patient probably would have been in the same physical condition absent
the defendant doctor's negligence. The first approach is to relax the reasonable
medical probability causation standard and allow recovery where the patient proves
the physician's conduct deprived the patient of a possibility of a better medical
... The alternative approach is to define the decreased possibility as a
light of the sheer size of the numbers of distinct judges and legislators
who have participated in this rule making, the chance of intentional
collusion is remote.
Hence, the core of the problem is not likely collusion, but rather a
matter of values common to attorneys everywhere. The regulators of
the bar-whether judges, legislators, or ethicists-are nevertheless
lawyers. They are so well versed in the problems faced by attorneys that
they share common values and perceptions with each other. Such a
sharing of values by decision-makers induces the creation of legal
doctrines that are justified by seemingly neutral principles, but actually
protect the interests of the economic elite. Karl Marx wrote of how the
law occupies a vital role in the creation of a "culture-complex," or a
system developed upon the core of values commonly accepted by the
rule makers.. Marx was "interested in explaining the character and
development of the whole culture-complex as effects of the relations of
compensable injury. Jurisdictions which follow this course adhere to the
"reasonable medical probability" standard of causation, but require the plaintiff to
show that the physician's conduct probably caused a lost chance of improvement or
20. KARL MARX & FREIDRICH ENGELS, BASIC WRITINGS ON POLITICS AND
PHILOSOPHY 43 (Lewis S.Feuer ed. 1959).
I was led by my studies to the conclusion that legal relations as well as forms of state
could be neither understood by themselves nor explained by the so-called general
progress of the human mind, but that they are rooted in the material conditions of
life, which are summed up by Hegel after the fashion of the English and French of
the eighteenth century under the name 'civil society'; the anatomy of that civil
society is to be sought in the political economy ....The mode of production in
material life determines the general character of the social, political, and spiritual
processes of life. It is not the consciousness of men that determines their existence,
but, on the contrary, their social existence determines their consciousness.
Id. at 43.
A nineteenth-century English case, decided during the time that Marx was writing in
England, may be the most perfect example of this 'culture-complex' phenomenon. The House
of Lords created the hearsay doctrine known as the "implied assertion" doctrine in an 1837
case, Wright v. Doe D. 'Tatham, 112 Eng. Rep. 488 (L.J. K.B. 1838). John M. Maguire, The
HearsaySystem: Around and Through the Thicket, 14 VAND. L. REV. 741, 749-60, 777 (1961).
The doctrine holds that out-of-court statements that are relevant because of the inferences
that can be drawn from the statements about the opinion of the declarant must be excluded.
Id. The doctrine isjustified by analogies to mundane events such as a person walking down
the street carrying an umbrella or paying a debt (to prove that it is raining or that the event
bet upon actually happened). See id. But, the doctrine just happened to prevent an untitled
servant from inheriting a vast estate and caused that estate to be vested in a member of the
production. In this culture-complex are included the legal codes,
day-byday legislation, and court decisions which we ordinarily designate as the
laws of a culture."2 1
Of course, the aspect of this culture-complex that
Marx would assign as the cause of the bar's maintaining rules that
protect attorneys rather than those who are dependent upon the bar, is
the "relations of production" that affect the economic underpinnings of
the legal profession.
The more modern and less pernicious application of this concept is
to attribute the regulators' blindness as to the discriminatory impact of
their rules to "regulatory capture." In effect, the regulators have been
"captured" by those they should be controlling.' Capture is generally
considered to be a problem of administrative agencies.
agencies are created to regulate a particular industry.
work with the industry on a daily basis, and eventually come to
understand every nuance of the industry and its problems. Although
such knowledge is essential to effective regulation, it also can have the
unintended side effect of capture. 3 Capture often occurs when the
regulators become so familiar with the industry and its problems that
they begin to have more understanding and empathy for the problems
of the industry than for those caused by the industry.24
Legal regulators include law reform lobbying groups, influential
legal analysts (the ALI Reporters who draft the Restatement of Torts,
for example), judges, and legislators. These are the groups that could be
expected to furnish the impetus for modification of rules so that they
21. SIDNEY HOOK, MARX AND THE MARXISTS 20 (Robert E. Kneger Pub. Co., 1982)
22. For an extensive analysis of the problem of captured regulators in the supervision of
the bar, see generally RICHARD L. ABEL, THE REGULATION OF THE AMERICAN LEGAL
PROFESSION AND ITS REFORM (1989); David B. Wilkins, Institutional Choices in the
Regulation of Lawyers: Afterword: How Should We Determine Who Should Regulate
Lawyers?-ManagingConflict and Context in ProfessionalRegulation, 65 FORDHAM L. REV.
465, 490 (1996) (highlighting both the positive and negative affects of agency capture with
respect to regulating the conduct of lawyers).
23. See BRUCE A. ACKERMAN & WILLIAM T. HASSLER, CLEAN COALJDIRTY AIR 3,
8-10 (1981); Sidney A. Shapiro, Symposium on the 50th Anniversary of the APA: A
Delegation Theory of the APA, 10 ADMIN. L.J. AM. U. 89, 100 (1997) ("Fortified by
numerous studies by Nader's Raiders documenting the failure of regulation in the previous
period, the activists saw' existing administrative procedures as abetting the 'capture' of agency
government by regulated interests.").
24. Capture theory states: "Whatever the original guidelines given them, goes the
argument, the agents get drawn into doing what is in the best interest of those they are
regulating-they are, wittingly or unwittingly, captured by the people they are supposed to be
policing.... WATERSON, supra note 10, at 7 (citation omitted).
fairly balance the interests of the consumers of legal services and the
bar. In fact, however, they have been uncharacteristically silent.25 The
reason for this silence is capture. Lawyers, like administrators who
identify with the regulated industry, understand the problems of the
legal industry too well. Every aspect of the legal regulatory system is
dominated by lawyers. All judges are lawyers. All of those responsible
for the Restatement of Torts are lawyers. A majority of legislators are
lawyers. Even lobbying groups such as the various state public interest
research groups, are lawyer dominated. Capture does not suggest
corruption or conspiracy; but rather, is a phenomenon of identification.
Lawyers will rarely lead a movement to impose new obligations on the
bar, because lawyers will never underestimate the problems of
compliance with those new duties or minimize the importance of their
professional services. Indeed, the bench and the bar can be trusted to
overvalue the importance of law and lawyers, and to use that valuation
as a justification for obstructing change.
A. The Judiciary
The most obvious examples of the way in which lawyers overvalue
the importance of legal representation can be found in judicial
opinions.26 Such overvaluation is very persuasive, suggesting that the
judiciary was not captured gradually over a course of time, but from the
beginning. In substance, the common training and experience of
attorneys who become judges is so persuasive that they are already
captured by over-identification with the legal industry before they
assume the mantles of regulators. Thus, the very life experience at the
bar, which is the essential background necessary for an attorney to
become a judge, simultaneously causes them to be captured. They are
25. See Leubsdorf, supra note 4, at 101.
Increasingly, professional ideals have been turned into enforceable law, and
selfregulation by the organized bar has become regulation by courts and legislatures.
The civil liability of lawyers obviously has a role to play in promoting the goals of
this regulatory system. These goals include ensuring that lawyers fulfill their
fiduciary duties to clients, restraining overly adversarial behavior which is harmful to
non-clients, and promoting access to legal services. Yet legal malpractice law has
rarely been considered in the light of such goals.
Id. at 102-03 (citation omitted).
26. See Leubsdorf, supra note 4, at 103.
27. GERSTON, supra note 9, at 69. "Capture theory itself holds two views. One, the
Examples of the ways in which judges over-identify with the bar can
be found in a wide range of judicial decisions. In 1998, for example, the
United States Supreme Court was faced with the task of defining the
access of defendants in criminal cases to exculpatory information.0 The
defendant wished to compel an attorney to provide him with statements
made by a now deceased ex-client.2" The Court had to balance the
defendant's liberty interest against the right of confidentiality of the
deceased client.3" The Court held that the lawyer-client privilege
continued after the death of the client." The majority based this holding
on its view that it was of vital importance to maintain the confidence of
clients in the confidentiality of their conversations with their attorneys.32
This need for confidence in confidentiality was portrayed as an essential
prerequisite of effective protection of a client's legal interests.33 Without
total confidentiality, clients would withhold information.34 The Court's
holding is based on a value judgment that the amorphous social interest
in protecting the incentive to communicate to an attorney is more
important than society's interest in avoiding the conviction of the
innocent. No exception would be made for providing information to a
prosecutor that would avoid the conviction of an innocent person. The
prohibition was extended so completely that it precludes any exception,
even one based upon prior judicial review to protect a living person's
right to be free from wrongful conviction.35 The rationale was that the
risk to the lawyer-client relationship could not be justified3.6 Thus, the
Court's ruling even precludes innocent defendants from obtaining
confessions made by deceased individuals to their attorneys.37
capture-at-originview, argues that regulation is adopted at the behest of business to protect its
needs. The other view, that of co-opting, contends that although regulatory agencies were
originally formed to serve the public interest, they have been co-opted over time by those
they were meant to regulate." Id.
28. Swidler & Berlin v. United States, 524 U.S. 399,401 (1998).
31. Id. at 410.
34. "Knowing that communications will remain confidential even after death encourages
the client to communicate fully and frankly with counsel." Id. at 407.
35. Id. at 402-03.
36. Id. at 407.
37. There is no suggestion in the majority opinion that the underlying nature of the
criminal case in which discovery of a deceased client's statements are demanded has any
relevance to the continuity of the privilege. See generally id.
The majority opinion in Swidler is based entirely upon the Justices'
concept of the importance of the lawyer. No data exists to suggest that a
partial exception to the privilege, after death and with prior approval of
a judge, would have even the most minor effect on clients. In fact, the
majority ignored data that strongly suggested the contrary. The
California courts have operated under a modified attorney-client
privilege, which includes an exception for posthumous disclosure, for
many years. 8 However, nothing indicates that the system of law in
California has been diminished because of the exception. The data,
however, did not fit in with the majority's inflated view of the critical
importance of lawyers and attorney-client confidentiality. Instead, the
court simply "understood" the role of lawyers so well that empirical
data was not needed. Such justice can only be explained by capture.
Another example of capture can be found in PrudentialInsurance
Co. of America v. Dewey, Ballantine, Bushby, Palmer & Wood.39 In
Prudential, the New York Court of Appeals held that a law firm was
free from liability for negligence because its conduct, though inept, did
not constitute a breach of duty.' ° Prudential was owed $92,885,000 from
a 1978 loan to United States Lines. Anticipating trouble in meeting its
It has been generally, if not universally, accepted, for well over a century, that the
attorney-client privilege survives the death of the client in a case such as this. While
the arguments against the survival of the privilege are by no means frivolous, they
are based in large part on speculation-thoughtful speculation, but speculation
nonetheless-as to whether posthumous termination of the privilege would diminish
a client's willingness to confide in an attorney. In an area where empirical
information would be useful, it isscant and inconclusive.
Id. at 410 (O'Connor, J.d,issenting).
38. The attorney-client relationship appeared to exist without diminution in California
even though the California Evidence Code explicitly limits the scope of the privilege in estate
matters to the pendency of that client's estate. Swidler, 524 U.S. at 415 (O'Connor, J.,
dissenting). "[Tjhere is little reason to preserve secrecy at the expense of excluding relevant
evidence after the estate is wound up and the representative is discharged." Id. (quoting
CAL. EvID. CODE § 954, cmt. at 232, § 952 (West 1995)). The Court, in finding that client
communication would be stifled if the privilege ended with the death of the client, also
ignored the fact that the California judiciary had routinely so limited it. "And a state
appellate court has admitted an attorney's testimony concerning a deceased client's
communications after 'balanc[ing] the necessity for revealing the substance of the
[attorneyclient conversation] against the unlikelihood of any cognizable injury to the rights, interests,
estate or memory of [the client].' " Id. at 415 (quoting Cohen v. Jenkintown Cab Co., 357
A.2d 689, 693 (Pa. Super. Ct. 1976)).
39. 605 N.E.2d 318 (N.Y. 1992). The law firm of Dewey, Ballantine, Bushby, Palmer &
Wood is hereinafter designated "Dewey, Ballantine."
40. Id. at 323.
obligations, United States Lines requested permission to reorganize that
debt.4' Prudential told that company that it was willing to permit the
reorganization, but only if the company's attorneys wrote Prudential an
opinion letter which found that the process would not undermine the
security of the money.42 The firm reviewed the documents and found
that the legal mechanism proposed was sound.43' However, in reviewing
the papers the firm failed to note that a critical document was drawn up
for $92,885, not $92,885,000. 4 The strategy worked but only the $92,885
was protected.4 The court held that although there was a duty owed to
the non-client plaintiff, it was not breached.4'6 The law firm's duty was
limited to opining on the merits of the legal theory, which did not
include a duty to Prudential to actually review the documents. The
court so held, despite the fact that the law firm actually possessed, read
and analyzed the documents as part of its process of formulating an
opinion on the legality of the proposed strategy.48
At best, this court demonstrates an extraordinary sensitivity to
nuances. The lawyers had a duty to opine on the viability of the legal
theory applied in the document. There was no duty, however, to opine
on whether those very documents viably implemented that theory. Such
nuance is remarkable. To determine whether it represents an actual
capture of conscience on the part of the legal profession, a simple
comparison can be constructed between the case law concerning
attorneys and that concerning other professionals. Such a comparison
reveals whether such nuanced views are representative of the way rules
are applied to everyone, or just to lawyers.
Medical malpractice cases supply a useful source of comparison, as
the medical profession, like the legal profession, provides vital services
to untrained individuals who generally lack the skill necessary to
independently evaluate the merits of the care they receive. Both groups
of consumers are thus dependent upon professionals and should receive
similar protections if victimized by negligence. However, doctor
defendants do not benefit from the Prudential-style subtle and limited
duty. When comparable medical malpractice cases are examined, it
appears that only the attorneys reap the benefits of judicial
micromanagement of their duty.
For example, courts have considered the obligation of various
medical experts to provide a patient with informed consent. In one case,
the defendants had a relationship to the patient/plaintiff that was
strikingly similar to that of the attorneys of Dewey, Ballantine to
Prudential. In Prooth v. Wallsh,4 the defendant was a consulting
specialist." The plaintiff sought a rule imposing a duty on the consulting
specialist to inform him of risks that might exist from the conduct of the
treating physicians.5' He asked the court to impose a duty upon the
physician to inform him of the potential consequences of the proposed
treatment.52 The theory of liability was that the consultants had to
transcend their relationship with the treating doctors and provide
information directly to the patient.3 Although the court rejected this
claim, the court expounded in dicta the duty of a medical consultant. 4
In a startling contrast to the approach taken by the Prudentialcourt, the
court stated that consultants should be responsible for such informed
consent if they are brought into the case at the request of the plaintiff.55
Such was the nature of the relationship between the consultant
defendants and the plaintiff in Prudential. The court's dicta, which
constitutes a surprisingly clear statement of the scope of duty that they
would apply to a medical or legal consultant in the relationship similar
to that of Dewey, Ballantine and Prudential, noted that the doctors
would have been liable, "if the consulting physician were called in
directly by the patient for a 'second opinion.'"6 In other words, the
Prooth court has clearly stated that a consultant who is brought into the
matter at the patient's request has an obligation of care to that patient
that extends to informing her of all potential consequences of the
treatment. No distinction was made between theory and document.
This dicta precisely tracks the relationship between the law firm of
Dewey, Ballantine and Prudential, in that the plaintiff in that case had
directly sought the law firm's opinion. 7
Proothis not the exception, but rather the rule in defining the duties
of medical consultants. In re Sealed Case58 involved a medical consultant
who had been hired by a doctor for the sole purpose of reviewing that
doctor's medical patients' charts "to ensure that tests [that the] Doctor
had ordered had actually been conducted and any necessary follow-up
performed."59 The court held that the consultant would have an
obligation to the patient if he "misread the six pages of results he
reviewed.... [or] failed to inquire into or diagnose any underlying
medical problem that he should have suspected based on those six
pages."60 Again, the court articulated a clear duty for medical
consultants to review the records for all purposes. Unlike Prudential,
there was no nuance or limitation of duty. The duty of a medical
consultant who reviews patient records extends beyond any theoretical
analysis. Instead, her duty is to review the documents with the care
necessary to reveal known or unknown problems if they could be
"suspected" or discovered through inquiry.6"
A hypothetical substitution of a medical consultant for Dewey
Ballantine permits a visualization of the different rules of law that would
be applied. Consider the duty that a court would apply if a famed
surgeon had been asked to review a set of diagnostic images (e.g., MRI,
CT, or X-rays) and give an opinion about the viability of a novel type of
surgery. Assume that she reviewed the documents and failed to notice
that the hospital records reflected a planned surgery for the left lung,
when the damage shown in the images was actually to the right lung.
After the healthy lung was mistakenly removed using the technique that
the consultant had ratified, the consultant is sued. The medical
consultant would, of course, cite Prudentialfor the proposition that her
duty was limited to reviewing the theoretical viability of the novel
57. Prudential Ins. Co. of Am. v. Dewey, Ballantine, Bushby, Palmer & Wood, 605
N.E.2d 318,319 (N.Y. 1992).
58. 67 F.3d 965 (D.C. Cir. 1995).
59. Id. at 969.
surgery technique and that her duty to review the records did not
include a consideration of how the technique was actually being applied.
She would claim that she was only asked to opine on the efficacy of the
technique for this type of lung condition. She would demonstrate,
accurately, that she was never specifically asked to evaluate the plans of
the hospital as to that particular patient. In a medical malpractice
context, courts would clearly reject such a duty limitation as absurd. As
stated in In re Sealed Case, the court would undoubtedly hold that the
consultant's duty extended to "any underlying medical problem that he
should have suspected based on those... pages."62
Clearly, doctors may be held liable where lawyers are not. Doctors'
duties to patients are broader than lawyers' duties to clients, and the
bench itself constructs theories that justify limiting the duty of the legal
profession to protect its clients. At this point, it is necessary to
remember that these limited duties are applied to attorneys whose
services the courts have found to be so vitally important that innocent
people must be incarcerated rather than reveal attorney-client
communications and threaten the possible efficacy of legal
representation. Only the phenomenon of capture explains the courts'
willingness to protect blatant attorney incompetence. Only capture
allows an understanding of how a court could craft duties so subtle that
they protect attorneys who caused non-client plaintiffs to lose millions
of dollars, just because the lawyers were unable to read and understand
the significance of a number on a document. Such decisions are the
product of captured regulators who are overly understanding of the
problems of their own profession.63
62. Id. (emphasis added).
63. Another example of the degree to which capture permeates the judiciary in its role
as regulator of attorney conduct can be found in cases in which courts consider the liability of
attorneys who abet client fraud. The attorneys in these cases have affirmatively made false
statements or by silence concealed false statements by clients. Neutral application of fraud
doctrine would seem to mandate liability for these attorneys. Yet the language in many of
these cases, if not the holdings, justifies and absolves such lawyer misconduct. As in other
areas of capture, an attribute of the attorney's representational obligation (here
confidentiality) is seen as so critically important that otherwise sanctionable conduct must be
excused. The captured courts so totally identify with the lawyer's interests that preferential
treatment for malfeasing lawyers is seen as essential. See, e.g., Schatz v. Rosenberg, 943 F.2d
485, 493 (4th Cir. 1991); Schlaifer Nance & Co. v. Estate of Andy Warhol, 927 F. Supp. 650
(S.D.N.Y. 1996), afl'd, 119 F.3d 91 (2d Cir. 1997) (discussed in Peter C. Kostant, Business
Law Symposium Multidisciplinary Practice: Sacred Cows or Cash Cows: The Abuse of
Rhetoric in Justifying Some CurrentNorms of TransactionalLawyering, 36 WAKE FOREST L.
REV. 49 (2001)). According to Professor Kostant, in Schatz:
B. The Bar: The Conspiracy of Silence
Thirty years ago, it was virtually impossible to get a doctor to testify
against another doctor in a medical malpractice case.64 That refusal to
participate in the process of judicial control of the medical profession
was called the "conspiracy of silence."65 The barrier of silence was the
product of a communal attitude about the practice of medicine, which
exhibited a feeling that medical practitioners' problems could not be
fairly assessed by anyone outside of the community of medical expertise.
Today, this communal identification has largely faded, in that medical
experts are commonly available to testify for plaintiffs in medical
By contrast, there is still a conspiracy of silence in the world of legal
malpractice. However, it is not created by the absence of willing
experts. As in the medical profession, there are now attorneys who are
willing to testify against other attorneys and attorneys who actively
prosecute legal malpractice actions. Instead, the legal conspiracy of
silence operates at a different level.
Lawyers have simply not been aggressive in developing new
doctrines of legal malpractice. The most obvious example of this
phenomenon is the absence of legal malpractice litigation attempting to
gain the adoption of the "loss-of-chance" doctrine. It has been more
The Fourth Circuit dismissed all claims for primary liability as well as for "aiding
and abetting" under rule 10b-5 or common law fraud. It also rejected the plaintiffs'
argument that "as a matter of public policy, lawyers should not be permitted to
perpetrate or assist in a fraud without being held responsible for their wrongdoing."
The court concluded that such a policy would prevent a client from reposing
complete trust in his lawyer and the "net result would not be less securities fraud."
Id. at 56. The decision in Schlaiferis then described in the following manner:
[A] federal district court overturned a jury's finding of fraud and explained that the
lawyer had no duty to speak even if he knew his client was making a material
misrepresentation. The court also concluded that the lawyer could not be liable for
statements in an opinion letter that were "absolutely and unequivocally false"
because no one could reasonably believe them.
Id. at 59.
64. See Leubsdorf, supra note 4, at 144-45 ("Starting in the nineteenth century, the
malpractice profession sought to protect itself from malpractice claims by discouraging
doctors from testifying against each other.").
65. Kessler, supra note 11, at 415.
66. See id. ("In thirty years, the medical malpractice bar has gone from losing cases
because of the 'conspiracy of silence among doctors' to winning a seemingly endless stream of
than a decade since the Washington Supreme Court applied the
loss-ofchance doctrine in Herskovits v. Group Health Cooperative,7 in which
the plaintiff could not prove that the medical malpractice was the cause
of death.68 The court held that, even though the plaintiff had only a 39%
chance of living, the doctor was liable because his negligence deprived
her of a 14% chance of survival." In light of the many legal malpractice
claims that fail because a plaintiff cannot overcome the causation
requirement of proving that she would have prevailed but for the
negligence of her attorney, Herskovits should have been a bonanza for
the legal malpractice bar. If applied in legal malpractice, even cases
with little chance of success could become vehicles for compensation
because a failure to comply with a statute of limitations or the like could
easily be proven to have caused a loss-of-chance. 0 But there are only a
sparse few reported decisions concerning the applicability of Herskovits
to legal malpractice actions. 7' For over a decade and across the nation
67. 664 P.2d 474 (Wash. 1983).
69. Id. at 475.
70. See Kessler, supra note 11, at 509 (proposing that loss-of-chance be adopted in
litigation malpractice action).
71. To attempt to determine the degree to which the bar has attempted to use the
lossof-chance doctrine to benefit plaintiffs in legal malpractice litigation, a broad-based Westlaw
search was conducted as recently as February 1, 2002. The terms searched were: "legal
malpractice" and "loss of chance," "loss-of-chance," "relaxed causation," or "Herskovitz."
The purpose of this search was to discover the number of times the doctrine, loss-of-chance,
or even the major case associated with the doctrine was mentioned in a legal malpractice case.
The search produced twenty-four cases. Of these twenty-four, thirteen were medical
malpractice cases discussing the loss-of-chance of survival due to negligent diagnosis of
disease. The twelve that did not apply are as follows: In re Agent Orange Product Liability
Litigation,597 F. Supp. 740 (E.D.N.Y. 1984) (class action suit against chemical manufacturers
utilizing alternative liability causation standard); American Home Assurance Co. v.
Hagadorn,56 Cal. Rptr. 2d 536 (Cal. Ct. App. 1996) (name coincidence of Herskovitz, case
has no relevance whatsoever); Gooding v. University Hospital Building Inc., 445 So. 2d 1015
(Fla. 1984) (medical malpractice action alleging loss of chance of survival); Holton v.
Memorial Hospital, 679 N.E.2d 1202 (Ill. 1997) (medical malpractice action for failure to
timely diagnose osteomyelitis caused patient to suffer paraplegia and thereby lost chance of
recovery); Cahoon v. Cummings, 715 N.E.2d 1 (Ind. Ct. App. 1999) (wrongful death suit suing
for loss of chance of survival due to negligent diagnosis of esophageal cancer); Smith v. State,
676 So. 2d 543 (La. 1996) (medical malpractice action for failure to timely diagnose patient's
cancer thereby causing patient to lose chance of survival); Weymers v. Khera, 563 N.W.2d 647
(Mich. 1997) (medical malpractice action for failure to timely diagnose Goodpasture's
Syndrome, in which the court held that there is no recovery for loss of an opportunity to
avoid physical harm less than death); Leubner v. Sterner, 493 N.W.2d 119 (Minn. 1992)
(medical malpractice action alleging loss of chance of survival due to negligent diagnosis of
breast cancer); Baker v. Guzon, 950 S.W.2d 635 (Mo. Ct. App. 1997) (medical malpractice
action alleging loss of chance of survival); Hardy v. Southwestern Bell Telephone Co., 910 P.2d
just these few plaintiffs attorneys have even tried to convince courts to
adopt loss-of-chance doctrines in legal malpractice cases. The plaintiff's
bar that has willingly put up millions to fund innovative suits against the
tobacco industry has done nothing to attempt to change legal
This passive acceptance of a legal structure that favors lawyers and
disadvantages the consumers of legal services is not limited to the
litigation bar. The educators and legal analysts who compose the
Reporters of the American Legal Institute's committees that draft the
influential Restatements of the Law Governing Lawyers have never
proposed a change in the basic principles of legal malpractice litigation."
1024 (Okla. 1996) (wrongful death suit alleging loss of chance of survival due to the negligent
failure of the 911 emergency calling system); Kramer v. Lewisville Memorial Hospital, 858
S.W.2d 397 (Tex. 1993) (medical malpractice action against hospital for negligence in causing
death or in the alternative causing the loss of chance of survival); Parrottv. Caskey, 873
S.W.2d 142 (Tex. Ct. App. 1994) (alleging loss of chance of survival due to negligent
diagnosis). One case was for accounting malpractice. See Mattco Forge, Inc. v. Arthur
Young & Co., 60 Cal. Rptr. 2d 780 (Cal. Ct. App. 1997) (accounting malpractice suit
analogizing to negligence of litigation support professionals considering whether or not to
adopt a loss of chance causation approach). The last involved fire damage to real property.
See Lohse v. Faultner, 860 P.2d 1306 (Ariz. Ct. App. 1992) (adjoining property owners
alleging loss of chance to escape harm from fire). Of the remaining nine cases, while loss of
chance was mentioned in the body of the opinion, eight did not deal with the application of
the doctrine to legal malpractice: Wright v. St. Mary's Medical Center of Evansville, Inc., 59 F.
Supp. 2d 794 (S.D. Ind. 1999) (applying Indiana law); Wysocki v. Reed, 583 N.E.2d 1139 (I11.
App. Ct. 1991); Thomas v. Bethea, 718 A.2d 1187 (Md. 1998); Singleton v. Stegall, 580 So. 2d
1242 (Miss. 1991); Macera Brothers of Cranston,Inc. v. Gelfuso & Lachut, Inc., 740 A.2d 1262
(R.I. 1999); Green v. Brantley, 11 S.W.3d 259 (Tex. App.-Ft. Worth, 1999); Tennison v. Krist,
No. 01-97-00039-CV, 1998 WL 502557 (Tex. App. Aug. 20 1998); and Nielson v. Eisenhower
& Carlson,999 P.2d 42 (Wash. Ct. App. 2000). See also Polly A. Lord, Comment, Loss of
Chance in Legal Malpractice,61 WASH. L. REV. 1479 (1986). The only instance in which the
loss-of-chance doctrine in a legal malpractice case was applied was in Daugert v. Pappas,704
P.2d 600 (Wash. 1985). Further, the hostility of the bench to such efforts is consistent with its
capture. Courts have consistently refused to apply any standard other than the "but for"
standard of proof in legal malpractice settings. Alternative proof theories have been
routinely rejected. See Sheppard v. Krol, 578 N.E.2d 212, 217 (I1A1.pp. Ct. 1991); Thomas,
718 A.2d at 1197; Nielson, 999 P.2d at 47; Daugert,704 P.2d at 605.
72. Even the response of the legal elite, those who draft the Restatement (Third) of the
Law Governing Lawyers, is distorted by their identification with the bar. The fact that the
attorney dominates access to information in any litigation and controls most critical litigation
decisions is not even thought of as a reason to modify causation proof burdens. Section fifty
details the bar's special duties to clients, while section fifty-three (which perpetuates the
"trial-within-the-trial" burden of proof on malpractice plaintiffs, rejecting the application of
alternative proof theories) makes these duties extremely- difficult to enforce. See
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §§ 50,53 (2000).
73. See id. § 53 cmt. b (2000) (concerning the onerous burden of proving the
"casewithin-the-case" element of causation).
prohibition, is that pain and suffering is not foreseeable and, thus, not
the proximate cause of the emotional distress." The second is that
emotional harm is speculative and permitting general recovery would
open attorneys to an unreasonable amount of litigation by unhappy
clients.83 The third is that imposing liability on attorneys for emotional
distress would act to deter access to legal representation by the
emotionally disturbed." None of these justifications is persuasive."
A. Pain and Suffering is Foreseeable
Discerning the reasons for the prohibition of compensation to
plaintiffs who can prove that they suffered emotional harm is not a
simple task. The starting point for this exploration is to seek a factual
basis. Do the victims of legal malpractice suffer? The result of this
82. See Camenisch v. Super. Ct., 52 Cal. Rptr. 2d 450, 454 (Ct. App. 1996) (barring
recovery for pain and suffering in a legal malpractice action where severe emotional harm
was not a foreseeable consequence of the plaintiff's loss of an economic claim due to the
defendant's malpractice); see also RESTATEMENT (THIRD) OF THE LAW GOVERNING
LAWYERS § 53 cmt. g (2000) (generalizing that "damages [for emotional distress] are
inappropriate in types of cases in which emotional distress is unforeseeable").
Neither are we unmindful of the fact that attorneys, if exposed to such liability,
would naturally be discouraged from representing what may be a sizeable number of
depressed or unstable criminal defendants, in the fear that it would later be alleged
that one such client committed suicide out of despondence over a 'wrongful'
conviction based on inadequate representation.
Id. at 127-28; see also MALLEN, supra note 14, § 20.11 at 147.
85. An additional theoretical justification could be fabricated. In this construct the
limitation of damages would become justifiable by the ploy of defining the nature of the
attorney-client relationship by the retainer agreement. If that is the entirety of the
relationship, then the relationship is a mere contract. Thus, contract theories should apply to
legal malpractice actions which would only be breaches of contract. Because the underlying
relationship between the lawyer and client is contractual, damages should be limited to those
recoverable in contract. Thus, collateral damages (emotional harm) should not be
compensable. This theory is a logical canard. It is merely stating the view that lawyers only
deal with monetary issues which are impersonal. Another way of expressing this
factuallyinaccurate concept is that economic issues (e.g., obtaining judicially-ordered compensation for
physical injuries) do not naturally create emotional harm. But see, infra text accompanying
note 118 for a discussion of the liability of insurance companies under the tort of bad faith. In
those actions, the insurance companies' breach of a contractual duty of representationcan
lead to compensation for pain and suffering.
search is obvious. The doctrine has no empirical support and is
blatantly false. The victims of legal malpractice, in many types of
actions, are clearly likely to suffer emotional harm. An obvious
example is the divorce action. Little is more traumatic than a divorce
action." Despite that consensus view of those who actually talk to
divorce clients, in many jurisdictions the victims of legal malpractice
who lose custody of their child 7 or the ownership of their family home
are denied compensation for the emotional harm. The reason given, of
course, is that the emotional distress that everyone knows occurs and
which is constantly discussed, is deemed not "foreseeable." In a
different context, most jurisdictions even deny recovery for emotional
harm where the negligence has caused the client to suffer the risk of
incarceration." The doctrine is clearly not based on a factual analysis of
what happens to real clients.
The next approach to determine the reasons for the doctrine is to
compare damage jurisprudence in other areas of law to attempt to
identify a consistent policy which rejects compensation for other
plaintiffs who can prove that they have been emotionally harmed. No
similar group of plaintiffs can be found. There are many areas of law in
which the identical negligent conduct causes emotional harm to some
plaintiffs but not to all. This type of varied impact of negligent conduct
is the norm. The issue has arisen so often that the catch phrase taught to
every first year torts student is: "You take your victim as you find
86. See Debbie Geiger, Separation Anxiety, NEWSDAY (New York), July 17, 2001, at
B10; Sara Lee Goren, Understanding the Impact of Divorce on Children, THE LEGAL
INTELLIGENCER, May 2, 2001, at 5; Donna Kutt Nahas, Under One Roof, NEWSDAY (New
York), June 5,2001, at B10; Karen Nazor, KidsCare:Programis for Parentsand Children who
Have Experienced Profound Loss, CHATTANOOGA TIMES, June 23, 2001, at F4; Karen
Springen & Pat Wingert, Is it Healthyfor the Kids?, NEWSWEEK, May 28, 2001, at 54.
87. See Thornton v. Squyres, 877 S.W.2d 921 (Ark. 1994). Some jurisdictions permit
compensation in limited types of malpractice cases such as custody, adoption, criminal and
other "unique" cases. See MALLEN, supra note 14, § 20.11, at n.1-3 (compiling the few cases
permitting pain and suffering recovery); see also Person v. Behnke, 611 N.E.2d 1350 (I1A1.pp.
Ct. 1993) (where malpractice led to loss of parental custody, lawyer liable for damages for loss
of children's society); Kohn v. Schiappa, 656 A.2d 1322 (N.J. Super. Ct. Law Div. 1995)
(improper revelation of names of adopted children).
88. Galu v. Attias, 923 F. Supp. 590 (S.D.N.Y. 1996). But see Perez v. Kirk & Carrigan,
822 S.W.2d 261, 264-67 (Tex. App. 1991) (allowing recovery of damages for mental sensation
of pain resulting from public humiliation after plaintiff's attorney disclosed a privileged
statement to district attorney resulting in plaintiff's incarceration). Contra Wagenmann v.
Adams, 829 F.2d 196 (1st Cir. 1987) (involuntary psychiatric commitment); Holliday v. Jones,
264 Cal. Rptr. 448 (Ct. App. 1989) (manslaughter conviction).
him." 9 This rule of tort law has long been applied to all types of torts,
including those that do not cause physical injuries. ° That, of course,
does not apply to legal malpractice injuries. In cases other than those
involving legal malpractice, compensation does not depend upon the
extent of the harm being foreseeable.91 In every other area of tort law,
this maxim reflects the balance of interests protected and explains the
broad availability of recovery for both tangible and intangible injuries.
Foreseeability has no role in limiting such recovery. For example, it is
certainly not foreseeable that a driver would hit a car driven by a Major
League Baseball pitcher. Yet, there is no limitation on the
compensation recoverable by such an unlikely plaintiff. The defendant
who injures the arm of that pitcher has caused a far greater economic
loss than if she had caused the same injuries to an attorney.' If the
damages are proven, they can be compensated. Legal malpractice
doctrine stands alone in its protection of lawyers against the obligation
to compensate its injured clients.
Outside of the law of legal malpractice, once a plaintiff has
established that the defendant's negligence has caused harm to a
protected interest, plaintiffs may obtain compensation for both the
tangible and intangible injuries-the emotional injuries." The key to
compensability is that the defendant committed a tort of negligence
which caused non-emotional injuries, and from which flowed provable
89. See Moore v. Ashland Chem., Inc., 151 F.3d 269 (5th Cir. 1998); Testa v. Village of
Mundelein, 89 F.3d 443 (7th Cir. 1996); RICHARD A. EPSTEIN, CASES AND MATERIALS ON
TORTS 524 (7th ed. 2000); W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW
OF TORTS § 43, at 291-92 (5th ed. 1984).
90. See Warren A. Seavey, Mr. Justice Cardozo and the Law of Torts, 39 COLUM. L.
REV. 20, 32-33 (1939).
[T]he tortfeasors should be liable irrespective of the unexpectedness of such harm.
Thus where the defendant has negligently struck a person whose skull is so fragile
that it is broken by the comparatively slight blow, all courts are agreed that the
defendant is liable for the wholly unexpected breaking. This is true not only with
reference to physical harm but also other forms of harm.
emotional harm." As with the physical harm, the extent of the
emotional harm need not be foreseeable." If the defendant injures an
emotional "thin skull" plaintiff, it may be unfortunate for her, but
presents no legal issues different from those involved in determining the
proper compensation for the injured baseball star. Both the star and the
emotional fragile represent small segments of the community. The fact
that there are comparatively few of the latter plaintiffs and that their
injuries are, therefore, unforeseeable, does not justify discriminating
It is instructive to examine the nature of the rules by which the law
imposes duties on our society's other great profession, medicine.
Medicine and law are vast service professions in which the customers
lack the sophisticated knowledge to deal with their difficulties alone
and, as a result, rely on others. The difference in the ability of the
customers of doctors and lawyers to collect for emotional harm caused
by professional malpractice is stark. In medical malpractice actions,
pain and suffering is always compensable.96 Indeed, the amount of the
pain and suffering component of medical malpractice judgments has
become so large that it has been viewed as a social problem threatening
the provision of medical services. As a result of this perception, many
state legislatures have placed "caps," or limits, on the size of such
94. The compensability of an act of negligence that causes nothing but emotional harm
raises different issues. One of the central elements of negligence is injury. When the only
injury is emotional harm, significant issues exist concerning whether the defendant acted
improperly and whether the plaintiff is not fabricating. See Kathleen M. Turezyn, When
Circumstances Provide a Guarantee of Genuineness: Permitting Recovery for Pre-Impact
Emotional Distress, 28 B.C. L. REV. 881 (1987); Mark A. Beede, Comment, Duty,
Foreseeability,and the Negligent Infliction of EmotionalDistress, 33 ME. L. REV. 303 (1981).
Although many jurisdictions still formally speak of the requirement of a physical injury, the
cases strongly support the belief that "physical" for this purpose simply means an identifiable
and provable emotional harm. See Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117
(Me. 1970); Johnson v. Ruark Obstetrics & Gynecology Assocs., 395 S.E.2d 85, 97 (N.C.
1990) (holding that severe emotional distress includes mental disorders "recognized and
diagnosed by professionals trained to do so").
95. See Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970) (involving a
fourteenyear-old girl in the back seat of a car who was institutionalized as a result of an automobile
accident in which she was not physically hurt). The court found that some emotional stress
was foreseeable from having been in an automobile accident. Id. at 1173. It was only the
extent that was unusual. Id.
96. See EPSTEIN, supra note 89, at 437 ("All jurisdictions recognize a right to recover
damages for bodily injuries, generally defined to cover 'any impairment of the physical
condition of the body, including illness and physical pain."').
awards.97 However, the support for a plaintiff's right to collect damages
for pain and suffering, where the defendant is a doctor, is such a critical
component of compensation that many state courts have found such
caps unconstitutional. The victim's right to this crucial type of
compensation vanishes when the defendant is an attorney in a legal
malpractice action. An almost absurd conflict exists in Alabama, where
the Alabama courts simultaneously hold that a legislative cap on pain
and suffering compensation in medical malpractice actions is
unconstitutional and that compensation for pain and suffering may not
be extended to victims of legal malpractice.99
Because the above analysis demonstrates that no basis in fact or
compelling legal analogy can be found to justify these doctrines, the only
remaining basis is that subjective perceptions of the bench require their
existence. In fact, the core policies are not factually justified, or
justifiable. The degree to which the courts rely on a non-factual policy
basis in fashioning this special protection for attorneys is made
particularly clear in the comparison of the damages permitted in three
eccentric, but bizarrely similar suicide cases. In Fuller v. Preis,' 0 the
plaintiff's estate claimed that injuries caused in an automobile accident
led to emotional distress and suicide.1"' In McPeake v. William T
Cannon, Esquire, P.C.,'° and McLaughlin v. Sullivan,'3 the plaintiffs'
97. See Timms v. Rosenblum, 713 F. Supp. 948 (E.D. Va. 1989); Merenda v. Super. Ct., 4
Cal. Rptr. 2d 87 (Ct. App. 1992). For a survey of the states that have adopted pain and
suffering caps in medical malpractice actions, see Randall R. Bovbjerg et al., Valuing Life and
Limb in Tort: Scheduling "Painand Suffering," 83 Nw. U. L. REV. 908 (1989). Contra
Wagenmann v. Adams, 829 F.2d 196, 221-22 (1st Cir. 1987); Bowman v. Doherty, 686 P.2d
112 (Kan. 1984); Rhodes v. Batilla, 848 S.W.2d 833 (Tex. App. 1993).
98. See Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995) overruled on other grounds by Ex
parte Apicella, 809 So. 2d 865 (Ala. 2001); Smith v. Dep't of Ins., 507 So. 2d 1080 (Fla. 1987);
Best v. Taylor Mach. Works, 689 N.E.2d 1057 (1111.997); Brannigan v. Usitalo, 587 A.2d 1232
(N.H. 1991); Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978); State ex rel. Ohio Acad. of Trial
Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999); Lakin v. Senco Prods., Inc., 987 P.2d 463
(Or. 1999); Lucas v. United States, 757 S.W.2d 687 (Tex. 1988); Sofie v. Fibreboard Corp., 771
P.2d 711(Wash. 1989); see also Wright v. Cent. Du Page Hosp. Ass'n., 347 N.E.2d 736 (I11.
1976); Carson v. Maurer, 424 A.2d 825 (N.H. 1980). However, the majority of states has
found such caps constitutional. See Mitchell S. Berger, Note, Following the Doctor's
OrdersCaps on Non-Economic Damagesin Medical Malpractice Cases,22 RUTGERS L.J. 173 (1990).
99. See Smith, 671 So. 2d at 1338 (holding that a cap on the pain and suffering
component of a personal injury action violated the state constitution); Boros v. Baxley, 621
So. 2d 240, 244-45 (Ala. 1993) (holding that, unless there was affirmatNe wrongdoing, pain
and suffering damages could not normally be collected in legal malpractice actions).
100. 322 N.E.2d 263 (N.Y. 1974).
101. Id. at 264.
102. 553 A.2d 439 (Pa. Super. Ct. 1989).
estates alleged that emotional traumas caused by legal malpractice led
to suicide."°4 In Fuller, the plaintiff was permitted to prove that the
suicide was the result of the emotional distress caused by physical
injuries (uncontrollable seizures) occasioned by an automobile
accident.' In both McPeake and McLaughlin, the plaintiffs were
prevented from proving that suicide was the result of emotional distress
caused by legal malpractice that led to prison sentences.'O According to
the latter courts, suicide is such an unforeseeable result of negligent
representation leading to incarceration that it could not be the
proximate cause of legal malpractice."W There was no data to support
this conclusion. Indeed, the facts are all on the other side. It is common
knowledge that "suicide watches" are frequently provided for new
prisoners because the emotional stress of incarceration often causes
suicide attempts."' Further, there have been successful lawsuits brought
by the estates of prisoners who committed suicide, allegedly because of
inadequate observation by the prison staff.' Car drivers take their
victims as they find them, but lawyers who represent emotionally fragile
clients need not worry about driving them to suicide. The lawyers'
negligence may cause it to happen, but judicially manufactured damage
doctrines make sure it does not "count," as a matter of law.
B. EmotionalHarm is Not Speculative
The second justification for the denial of compensation for
emotional harm is that it is too speculative. This theory flies in the face
of fifty years of jurisprudence. A century ago, the courts feared that
emotional harm would be the refuge of charlatans reaping havoc on
defendants with fraudulent claims."' Gradually, over time, the need to
permit compensation for plaintiffs with real emotional injuries became
obvious. Emotional harms that were the result of physical injuries were
compensated.' With the passage of time, victims of negligence who had
only emotional injuries became able to gain compensation through the
tort of negligent infliction of emotional harm' while those who had
varied injures were .permitted to have their emotional harm
compensation in other torts even if they did not develop physical
injuries."' Emotional harm is now compensable when the plaintiff can
simply prove that she suffered. Unless the plaintiff is the victim of legal
malpractice there is no requirement that the emotional distress be
foreseeable or probable, it simply must be proven.
An analysis of employment discrimination and insurance company
liability actions readily demonstrates that the denial of compensation for
emotional harms in legal malpractice actions is the exception, not the
norm. In a Title VII sexual harassment action, for example, a plaintiff
who may not be the victim of harassment, but merely an observer, is
allowed to prove that she suffered emotional harm from having heard of
the events." ' The foreseeability of such harm is generally held to be
110. The dominant rule followed in the nineteenth century, and which persisted
throughout the first half of the twentieth century, reflected the thought that "a suspicion
about the genuine character of emotional distress ... and a concern that recognition of
emotional distress would open the floodgates to fraudulent claims." R. L. Raben, Tort Law
in Transition:Tracing the Patternsof Sociological Change, 23 VAL. U. L. REV. 1, 29 (1988).
112. See RESTATEMENT (SECOND) OF TORTS § 436 (1965).
113. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). In Gertz, the Supreme
Court held that the victim of defamation could gain compensation for emotional harm even
though no economic damages could be established; see also, Molien v. Kaiser Found. Hosps.,
616 P.2d 813 (Cal. 1980); Burnett v. Nat'l Enquirer, Inc., 193 Cal. Rptr. 206 (Ct. App. 1983);
David Anderson, Reputation, Compensation, and Proof,25 WM. & MARY L. REV. 747, 758
114. See, e.g., Vinson v. Taylor, 753 F.2d 141,146 (D.C. Cir. 1985) ("Even a woman who
was never herself the object of harassment might have a Title VII claim if she were forced to
work in an atmosphere in which such harassment was pervasive."), affd in part and rev'd in
part, 477 U.S. 57 (1986); see also Hall v. Gus Constr. Co., 842 F.2d 1010, 1014-15 (8th Cir.
1988) (Congress evinced an "intention to define discrimination in the broadest possible
terms" (citation omitted), and "evidence of sexual harassment directed at employees other
than the plaintiff is relevant to show a hostile work environment."); Hicks v. Gates Rubber
Co., 833 F.2d 1406, 1415-16 (10th Cir. 1987) ("[O]ne of the critical inquiries in a hostile
environment claim must be the environment." Evidence that other employees had been
harassed by supervisor "should be considered... in determining whether a hostile work
irrelevant. As long as the plaintiff can prove the existence of harm,"'
she should be allowed to collect.
Similarly, the Supreme Court has held that an employee who has
been threatened with the denial of a promotion could sue for damages
even though she got the promotion."6 There is little logic to a legal
system that permits a plaintiff who merely heard of harassment to
obtain compensation for emotional harm, but denies such compensation
to plaintiffs who have been victims of legal malpractice even the
opportunity to prove that they have been harmed.
Lawyers may perform a public service, but they do it for a profit.
They are in business and, as such, the same rules should be applied to
them when they perform their professional role as in their other
conduct. Under our present rules, an employee of an attorney who
heard the attorney sexually harass a co-worker can collect compensation
for emotional distress, while the client of that lawyer who lost her home
or business cannot. The attorneys' clients are less protected by the legal
system than are their employees. These Title VII cases are pertinent to
the issue of damages in legal malpractice cases because they reveal the
normative scope of legal protection against emotional harms. They
establish the proposition that the homilies of speculative-ness and the
need to protect a defendant that are claimed to be the justification to
preclude such compensation in legal malpractice actions have been
ignored in virtually all areas of law.
The lack of rational support for this lawyer protective doctrine is,
however, even more starkly apparent when the legal obligations of
insurance companies are compared to those of attorneys. An insurance
environment sexual harassment claim has been established"); Henson v. City of Dundee, 682
F.2d 897, 902 (11th Cir. 1982) ("[A] hostile or offensive atmosphere created by sexual
harassment can, standing alone, constitute a violation of Title VII); Stockett v. Tolin, 791 F.
Supp. 1536, 1553 (S.D. Fla. 1992) (quoting the language from Vinson, supra).
115. In assessing the hearsay nature of the plaintiff's Title VII claim, the court posited,
"Does the law deny that an environment where a superior refers to co-workers in vulgar
sexual terms, while studiously avoiding calling one favored female profane names, is
demeaning, harassing, and incompatible with the dignity and well being of all the women in
that workplace?" Leibovitz v. New York City Transit Auth., 4 F. Supp. 2d 144, 152
(E.D.N.Y. 1998), rev'd on other grounds, 252 F.3d 179 (2d Cir. 2001) (quoting Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). Answering in the affirmative, the court held
that "[blenign neglect by an employer under such circumstances is not permitted. A Title VII
hostile work environment claim may be based upon this form of discrimination because the
statute affords 'employees the right to work in an environment free from discriminatory
intimidation, ridicule, and insult.'" Id.
116. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
company's refusal to settle an action can cause exactly the same injuries
as those created by legal malpractice. The liability of the lawyers is
limited. However, insurance companies are routinely held liable for
both the economic and emotional harms caused by their acts. The tort is
bad faith refusal to settle a case within the limits of the insurance policy.
The only difference between litigation malpractice and bad faith
settlement is the identity of the defendant, and that cannot be a
justifiable basis for differences in liability. If a personal injury defense
attorney commits malpractice, and as a result of that conduct the client
has to personally pay a substantial judgment, the attorney will not be
required to compensate for the client's emotional distress. 1'7 If the very
same defendant's insurance company refuses to settle that action within
the policy limits and, as a result, the defendant has to pay a substantial
judgment, the insurance company, if found liable for bad faith, will have
to compensate for both the economic loss and any proven emotional
harm.' The injured party in both scenarios is the same-the personal
injury defendant. The harm caused by the legal malpractice and the
insurance bad faith are the same."9 Both types of conduct cause
117. See generally Reed v. Mitchell & Timbanard, P.C., 903 P.2d 621,626 (Ariz. Ct. App.
1995); Gavend v. Malman, 946 P.2d 558, 562-63 (Colo. Ct. App. 1997); Lawrence v. Grinde,
534 N.W.2d 414, 422-23 (Iowa 1995); Heath v. Herron, 732 S.W.2d 748, 753 (Tex. App. 1987).
118. See Merlo v. Standard Life & Accident Ins. Co. of Cal., 130 Cal. Rptr. 416, 423 (Ct.
App. 1976) (entitling the plaintiff to "recover compensatory damages for all detriment
proximately resulting from the tortious breach of the covenant, including economic loss as
well as emotional distress"); Gibson v. W. Fire Ins. Co., 682 P.2d 725, 738 (Mont. 1984)
(allowing recovery of damages for mental anguish, including emotional distress in an action
against an insurer for breach of its implied covenant of good faith and fair dealing towards the
insured); DeChant v. Monarch Life Ins. Co., 547 N.W.2d 592, 596 (Wis. 1996) (permitting
recovery of damages for emotional distress, loss of reputation, and economic injury to
insureds who prove that their insurers acted in bad faith); State Farm Mut. Auto. Ins. Co. v.
Shrader, 882 P.2d 813, 833 (Wyo. 1994) (holding that the scope of available compensatory
damages for a breach of the duty of good faith and fair dealing includes damages for harm to
pecuniary interests and emotional distress).
119. Assume that the personal injury defendant has a one-hundred-thousand-dollar
insurance policy and that there is a five-hundred-thousand-dollar verdict against the
defendant after a trial. If the insurance company has refused to settle in bad faith, it has
caused an economic loss to the defendant of four hundred thousand dollars. Assume now that
there is no insurance. If the defense attorney is responsible for causing a
four-hundredthousand-dollar verdict because of malpractice (the non-malpractice verdict would have been
no liability), the attorney has caused an economic loss to the defendant of four hundred
thousand dollars. If the client had the resources to pay the judgment, it is hard to imagine that
there would not also be a lot of anxiety and emotional distress. The insurance company has to
compensate for the four-hundred-thousand-dollar loss and the emotional distress. The
attorney's liability is limited to the economic loss.
economic losses to a party in a litigation. The insurance company causes
an unnecessarily large loss to a defendant. The attorney may cause such
a loss to either the defendant or the plaintiff. There is no difference to
the victimized client. The difference is in the rules of compensation.
The attorney's liability is capped by the judicial prohibition against
compensating clients for pain and suffering.
Unfortunately, neutral principles cannot be found to explain the
distinction. The only explanation is that the bar is the recipient of
special favoritism. The bar is sheltered from responsibility for part of
the injuries that they cause. Both insurance companies and litigation
attorneys are in business. Both have insurance to pay for injuries that
they commit through negligence. No policy factors exist to justify the
distinction. The protection of the bar is simply the result of successful
special interest pleading by a privileged group.
C. Limiting Damagesfor EmotionalHarm is Not Necessary to Insure
The third justification is even more disturbing than the others. It is
that lawyers must be immune from the obligation to pay for emotional
harm because that is the only way to insure the availability of legal
services. In essence, if compensation for emotional harm is permitted,
there would be so many lawyers fleeing practice or shunning potential
clients who appear to have emotional problems in fear of liability that
clients would go unrepresented. 20 The essence of this argument is that
the only way to guarantee an attorney for an emotionally fragile person,
is to give the bar protection against liability for emotional harm.
In considering whether this factor justifies the deprivation of
compensation for clients, it is again useful to examine the law's
treatment of analogous groups. The clients who are most likely to suffer
emotional harm from legal malpractice fall within two groups. The first
is those with some degree of pre-existing emotional problem. The
second is those with limited economic resources. The first is more likely
to suffer emotional harm because of their emotional instability. The
second is more likely to suffer emotional harm due to the fact that the
120. See McPeake v. William T. Cannon, Esq., P.C., 553 A.2d 439 (Pa. Super. Ct. 1989).
Plaintiff committed suicide after being convicted of a crime because of his attorney's
negligence. Id. at 440. In rejecting compensation for the pain and suffering, the court stated
that compensation could not be allowed because the result would be to discourage attorneys
"from representing what may be a sizeable number of depressed or unstable criminal
defendants." Id. at 443 (citation omitted); see also MALLEN, supra note 14, § 20.11.
losses created by the legal malpractice will have a greater impact on
those clients than it will on clients with greater economic resources.
Although our legal system has not created- many rules that reflect
special concern for the poor, there are many rules that protect those
with emotional problems. The most significant is the Americans With
Disabilities Act (ADA).'21 The ADA prohibits the denial of services to
those with disabilities and nationalizes protections that were already
provided by statutes in many states. 22 Individuals with disabilities,
emotional or physical, are among those protected by the ADA and the
similar state statutes."z By the very fact that these statutes grant a bona
fide cause of action, attorneys are obligated by them to serve the
disabled. With or without potential liability, it is their legal obligation to
Notwithstanding, the courts that justify liability limitation do not
believe that the bar will accept this statutory duty. They apparently
believe that lawyers, without the economic incentive of immunity from
any obligation to pay damages for emotional harm, would violate the
ADA by refusing services to the emotionally disturbed. 124 If the bar
were not given the economic kick back of liability limitation, the
attorneys would not obey the law. The courts, in other words, have
articulated as a justification for limiting liability the fact that without it,
they believe that attorneys would violate state and federal statutes.
In such decisions there is no data that justifies the belief that liability
for emotional harm would induce lawyers to shun the representation of
the emotionally challenged. These decisions are rather the product of
reverse lawyer bashing. It is a rule induced by the courts' perception of
the nature of lawyers and the practice of law. The courts reason that the
limitation is needed because of their experience and impression of the
conduct of the bar.
The bar deserves no greater protection than other professions.
Although attorneys receive no formal training in the treatment of the
emotionally distraught,'25 a divorce or criminal defense attorney can be
121. 42 U.S.C. § 12181-89 (2000).
122. See, e.g., MICH. COMP. LAWS ANN. § 37.1102 (West 1998); MINN. STAT. ANN. §
363.03 (West 1998); N.Y. EXEC. LAW § 296 (McKinney 1998).
123. See generally Bragdon v. Abbot, 524 U.S. 624 (1998) (holding that HIV constitutes
a disability within the purview of the ADA).
124. See MALLEN, supra note 14, § 20.11, at 147.
125. In Witte v. Desmarais,614 A.2d 116, 118 (N.H. 1992), the court found that lawyers
were not able to handle emotional problems because of their lack of training.
at least as experienced in dealing with emotional distress as any
anesthesiologist, dermatologist, or podiatrist. Doctors, like lawyers,
have to treat emotionally fragile people. Both professions have an
interest in lowering their malpractice exposure. The courts, however,
find no need to protect patients' access to medical treatment by limiting
doctor's liability. No court has ever opined that damages must be
limited to encourage the medical profession to treat the emotionally
sensitive patient. The bar is neither more deserving nor less ethical than
the medical profession. It is an economic elite with far more resources
than most of the people it represents," 6 and does not deserve special
protections. Rather, the clients need the protection.
The bizarre notions about lawyer conduct and the antiquated
concerns about fraudulent claims of emotional harm that support the
denial of compensation for pain and suffering would be entertaining if
they did not have such significant consequences for those who are
victimized by legal malpractice. The cost of litigation acts as a critical
protection of such attorneys. In part because of the preclusion of pain
and suffering damages, legal malpractice judgments are often too small
to justify the cost. It is not worth the money to go after the negligent
attorneys, and it certainly is not worth the money to invest in litigation
to induce a court to reverse precedent. The individual is left without
proper compensation and the system of law is left without the necessary
incentive to use tort litigation to supervise the bar.
When doctors complain that their legal duties leave them vulnerable
to unreasonable liability claims, courts find that the duties owed to the
patient are more important."' Medical malpractice insurance rates soar,
patients collect multi-million dollar judgments, and doctors retire
prematurely."' When legal malpractice defendants make similar
126. See THE RICH: Who They Are; The Upper Tail, N.Y. TIMES, Nov. 19, 1995, § 6 at
70 ("The typical partner in an American law firm earned $168,000 last year, 7.5 times more
than median earnings. ... ).
127. See Robak v. United States, 658 F.2d 471, 473 (7th Cir. 1981) (creating a cause of
action for wrongful birth and awarding damages to the parents of a child born with rubella
where a doctor neglected to inform a pregnant mother that she had rubella); Cruz Aviles v.
Bella Vista Hosp. Inc., 112 F. Supp. 2d 200 (P.R. 2000) (deciding that, under Puerto Rican
law, a patient suing for lack of informed consent does not need to prove a separate negligent
act, such as medical malpractice, other than the lack of informed consent); Herskovits v.
Group Health Coop., 664 P.2d 474 (Wash. 1983) (allowing plaintiff's estate to recover for
decedent's loss of chance of survival absent a showing that the doctor's negligence was the
proximate cause of death).
128. See Kimberly Atkins, State Becoming Less Desirablefor Physicians,Report Says
Lower Pay, Rising Costs Seen Driving Young Doctors Away, BOSTON GLOBE, July 24, 2001,
appeals, the courts listen. As a result, legal malpractice litigation has
not had a significant impact on the bar. While courts understand the
need to limit attorney duty and compensation burdens, no court
bemoans the exposure of the medical profession to excessive liability.
The courts understand that doctors will not be deterred from practicing
even if they are fully liable for the cost of their negligence.129 The same
understanding does not apply to the bar. Only lawyers have retained
the legal right to negligently cause clients to suffer emotional harm
through malpractice without being required to compensate their clients.
There is no logical impediment to compensating legal malpractice
plaintiffs for their proven pain and suffering. The technical arguments
that have supported the limitation of damages do not withstand careful
scrutiny. The limitation, in light of decisions in other areas, is a vestige
of a prior era. It is among the least tolerable special protections for the
bar. This singular protection of the bar from bearing its financial
responsibility for injuries to the consumers of legal services has no
logical justification. Capture is the only possible explanation for the
willful blindness of the judiciary to the craven protectionism of this
doctrine, and consequently, whenever malpractice has been established
provable, emotional harm must be compensated. 3 '
IV. ATTORNEYS' FEES SHOULD NOT BE DEDUCTIBLE FROM LEGAL
The rule requiring the deduction of the negligent attorney's fee from
a legal malpractice verdict seriously and illogically denies legal
malpractice plaintiffs full recovery. In so doing, it protects the
malpracticing bar by reducing liability in individual cases and by limiting
incentives to sue in all cases.
Although this rule is rationalized as a mere application of traditional
at B5; Joelle Babula, MedicalMalpractice:Rising InsuranceCosts Threaten Care,LAS VEGAS
REV. J., July 1, 2001, at 1B; Michael Prince, Rates Hikes Symptomatic, Bus. INS., June 11,
2001, at 3.
129. The problem of the unstable patient was not ignored in medical malpractice cases,
but rather than eliminate the duty entirely, as the courts did with lawyers, a very limited
modification of duty was created. See, e.g., Rogers v. Comm'r of Dep't of Mental Health, 458
N.E.2d 308 (Mass. 1983). When it appears unreasonable to require a doctor to obtain
informed consent from unstable patients, a suit can still be filed. Id. But the doctor can
defend by proving that a reasonable doctor would find that a particular patient could not
rationally evaluate the medical alternatives. Id.
130. Some jurisdictions have adopted this principle. See, e.g., Burton v. Merrill, 612
A.2d 862 (Me. 1992); Salley v. Childs, 541 A.2d 1297, 1300-01 (Me. 1988).
causation doctrine,' careful analysis reveals that it also lacks a basis in
logic or analogous precedent. The causation rationalization stems from
the fact that the plaintiff's burden of proof of cause in fact includes the
obligation of establishing the extent of the damages caused by the
defendant's conduct. The plaintiff in a tort action is entitled to
compensation for the injuries caused by the defendant's conduct;'
however, she is not entitled to overcompensation. She must establish
that the defendant caused damage and the exact amount of that damage.
When this doctrine is applied to a legal malpractice case, it often
leads to the reduction of the negligent attorney's fee from the plaintiff's
judgment.'33 The traditional analysis is simple. The malpractice has
deprived the plaintiff of her judgment. Thus, she should get that money.
Despite that, because the attorney's fee would have been deducted from
any judgment, without malpractice, the client would have paid the fee.
She would never have received those monies even if she had obtained
the original judgment. Therefore, to prevent an unjust enrichment of
the plaintiff, the unpaid fee should be deducted, because the plaintiff
would not have gotten the money without negligence on the part of her
attorney; it is not part of her damages.
The contingent fee case presents the clearest application of this
doctrine. If a judgment would have been for one hundred thousand
dollars, the plaintiff would have received only sixty-six thousand
dollars.'34 The remaining sum would have been the contingent fee.
Thus, the amount of a judgment for malpractice should not be the full
one hundred thousand of the verdict, but the net sixty-six thousand that
the plaintiff actually lost. Giving the plaintiff the thirty-three thousand
dollars of the contingent fee would be overcompensation.
This analysis, however superficially logical, is nevertheless flawed. It
ignores the consequences of deducting the fee from the
one-hundredthousand-dollar verdict. Deducting the fee from the amount that the
attorney owes the client is the functional equivalent of giving that fee to
131. See McGlone v. Lacey, 288 F. Supp. 662, 665 (D.S.D. 1968).
132. See Seaward Constr. Co. v. Bradley, 817 P.2d 971, 975 (Colo. 1991); Mendillo v. Bd.
of Educ. of E. Haddam, 717 A.2d 1177 (Conn. 1998); Thames v. Zerangue, 411 So. 2d 17, 19
133. See Moores v. Greenberg, 834 F.2d 1105, 1113 (1st Cir. 1987). Contra Campagnola
v. Mulholland, Minion & Roe, 555 N.E.2d 611, 613 (N.Y. 1990); Leubsdorf, supra note 4, at
152-53 ("The question is not what the lawyer will be paid, but how much the lawyer will have
to pay to recompense the client.")
134. Assuming a contingent fee of one-third.
the attorney. Without negligence, the client would not have had this
money. However, there was negligence. Thus, with negligent
representation, the attorney would not have had the money, either. If it
is as inequitable to give this sum to the plaintiff, it is similarly
inequitable to give it to the attorney. Neither the malpractice plaintiff
nor the malpracticing attorney deserves the fee. The client does not
deserve it because she would not have received the full one hundred
thousand dollars without malpractice, and the attorney does not deserve
the fee because of her malpractice.135
The solution to the appropriate allocation of the fee is not simple,
since neither side of the controversy deserves the monies represented by
the legal fee. Indeed, it represents something of a Hobson's choice.136 If
the client receives the money, the client appears to get more through the
malpractice verdict, than would have been received in the underlying
case. On the other hand, if the attorney gets the benefit of the fee, by
the reduction in the malpractice award, the attorney gets the benefit of a
fee that was not earned.
Although neither party deserves the fee, the blind application of the
traditional causation burden of proof rules acts to allocate this sum to
the attorney. The plaintiff has the burden of establishing damages.
Obviously, the plaintiff cannot prove that she would have received the
full amount of a verdict. Thus, the plaintiff receives only what she can
prove. The decision to give the value of the fee to the attorney is
derived from burden of proof policies. The apparent justification is that
we cannot violate the principle that plaintiffs should receive no more
than they deserve.
This allocation does not equitably balance justice interests in this
special type of case. The reason is that the nature of the relationship
between the lawyer, the client, the fee, and the malpractice creates a
special problem of equity. Normally, a judgment reflects the amount
that the plaintiff has lost. In general, defendants pay because they
135. Malpractice is a defense to an action to collect a fee. See Nickerson v. Martin, 374
A.2d 258 (Conn. Super. Ct. 1976); Klem v. Greenwood, 450 N.W.2d 738 (N.D. 1990); CLS
Assocs. v. A.B., 762 S.W.2d 221 (Tex. App. 1988); Short v. Demopolis, 691 P.2d 163 (Wash.
136. Hobson was a man who rented horses in England in the nineteenth century. The
phrase developed because of his practice of presenting renters with the choice of the horse he
selected, or no horse at all. Apparently many of Hobson's horses left the renter wondering
which choice to make. Thus, the choice between two undesirable options was given a name.
See WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY 675 (1992); 7 OXFORD
ENGLISH DICTIONARY 279 (2d ed. 1989).
caused the loss. But the legal fee in the case that underlies a malpractice
action is different. It is deducted from a verdict because the competent
attorney who won the case would have earned it. In other words, it is
taken from the plaintiff because it belonged to the defendant. With
malpractice, however, the defendant no longer has a valid claim to the
money. It would not have been her money because the malpractice
deprives her of the right to the fee. The special equitable problem is
that the amount of the fee cannot simply be removed from the case. Its
value has to be given to one of the parties. Either the attorney gets the
value of the fee in a reduced judgment, or the client gets the fee by
receiving the full judgment.
In applying the traditional burden of proof criteria, the legal system
simply chooses to ignore the inequity of giving the attorney the benefit
of an unearned fee. A direct examination of the equitable claims of the
parties reveals a fairer basis upon which to make the allocation.
Although neither party deserves this sum, the equitable claims of the
two are dramatically different. The defendant, through legal
malpractice, has injured the client, while the client has committed no
wrongful act. It is self-evident that the malfeasor is less deserving of any
equitable allocation than is her victim.
Moreover, the client brings a further equitable claim to bear on the
allocation decision. This factor is the pragmatic reality of legal
malpractice litigation. The reality is that the legal system does not fully
compensate the plaintiff, even when she wins. For example, the client
who should have received a net of sixty-six thousand dollars from the
properly conducted case, will receive a sixty-six-thousand-dollar
judgment in the malpractice action. This seems to be fair. However, she
does not keep that sum. -The attorney who represented her in the
malpractice action will take a fee out of the proceeds. Assuming a
typical contingent fee of one-third, the sixty-six-thousand-dollar
judgment would dwindle to forty-four thousand. Because of the
malpractice, the client has lost twenty-two thousand dollars .
137. For similar reasons, nine jurisdictions have recently rejected the common view and
permitted the prevailing legal malpractice plaintiff to retain the full judgment without
deduction of the legal fee. See MALLEN, supra note 14, § 20.18, at 161, n. 5; see also Alvin 0.
Boucher, North Dakota Legal Malpractice:A Summary of the Law, 70 N.D. L. REV. 615,
62930 (1994). The most aggressive state in protecting client's interests is New Jersey. It has both
precluded any deduction for the fee of the negligent attorney, and gone on to require the
negligent attorney to compensate the ex-client-plaintiff for the attorney's fees in the
malpractice action. See Packard-Bamberger & Co. v. Collier, 771 A.2d 1194 (N.J. 2001);
Saffer v. Willoughby, 670 A.2d 527 (N.J. 1996); Bailey v. Pocaro & Pocaro, 701 A.2d 916,
This factor should be considered in determining the proper
allocation of the monies representing the attorney's fee. The present
system effectively rewards the negligent attorney by giving her the
benefit of the undeserved fee. 3'8 It penalizes the injured by forcing the
client to pay two attorneys' fees. These are the fees of the negligent
attorney (deducted from the judgment) and the fee of the malpractice
attorney (deducted after the judgment). It is a classic "win-win" system
for the bar.
The failure of the legal system to consider the total impact of legal
malpractice on the client is not surprising. The judicial system is
wedded to the notion of thinking by analogy. 3'9 In the area of tort
causation and attorneys' fees, the precedents are clear. Two principles
are well established. The plaintiff should not be overcompensated, and
legal fees are not collectable from the defendant."' The fact that the
application of these principles to a legal malpractice case causes the
attorneys to reap undeserved benefits while leaving clients inadequately
compensated has no role in the analysis. The basic principles appear to
be too well established to be reconsidered.
Reconsideration is necessary, however. The economics of this issue
are simple, and the economics define the fair result. In the above case
of negligence, by depriving the client of a one-hundred-thousand-dollar
judgment, the lawyer is presently receiving the benefit of a
thirty-threethousand-dollar windfall. As a result of this windfall, the client suffers a
The steps necessary to reverse this inequity are well established in
analogous tort compensation jurisprudence. The technique is to modify
the traditional proof standards by redefining what may be proven. In
this manner, varying traditional proof burdens to prevent an undeserved
windfall going to the malfeasor is a routine event in tort jurisprudence.
The rule is also simple. When the correct allocation of an aspect of the
financial injuries cannot be determined, the legal system gives the
money to the victim.
Two clear examples are immediately apparent. The first is the
court's refusal to reduce tort judgments by the amount of income tax
that would have been paid on lost income. The second is the court's
refusal to permit judgments to be reduced by collateral benefits. The
most obvious example is the rule concerning the treatment of
anticipated income tax. Although nothing appears more certain than
death and taxes, projected income taxes are not deducted from tort
verdicts."' When a plaintiff has lost income as a result of negligence the
amount of the gross income that was lost would certainly have been
reduced by taxes. The exact tax rate, however, fluctuates. Thus, it is
unclear how much to deduct.14 The defendant has an obligation to
compensate the plaintiff for lost income. This loss is often for a period
of many years. If present tax rates were applied to reduce the verdict,
the result might deprive the plaintiff of income in the event of falling tax
rates. Of course, if taxes were not deducted, the defendant would
almost certainly be overcompensating the plaintiff, since some level of
taxation is a certainty. The conclusion of the common law courts was to
completely ignore takes. Rather than deduct more in taxes than might
141. See Klawonn v. Mitchell, 475 N.E.2d 857, 858-61 (III. 1985); Lumber Terminals, Inc.
v. Nowakowski, 373 A.2d 282 (Md. Ct. Spec. App. 1977); Lazano v. City of New York, 519
N.E.2d 331, 332 (N.Y. 1988); see also I.R.C. § 104(a)(2) (West 1998) (stating that taxable
gross income does not include "the amount of any damages (other than punitive damages)
received (whether by suit or agreement and whether as lump sums or as periodic payments)
on account of personal physical injuries or physical illness ...".).For further discussion of
the non-taxability of tort verdicts, see Malcolm L. Morris, Taxing Economic Loss Recovered
in PersonalInjury Actions: Towards a CapitalIdea?, 38 U. FLA. L. REV. 735, 737-38 (1986).
But see Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 493-94 (1980) (permitting the
deduction of income taxes in wrongful death suits under the Federal Employers' Liability Act
142. Deducting projected income taxes from tort verdicts creates numerous
complications. For a discussion of these difficulties, see Robert J. Aalberts & Melvin W.
Harju, Utilizing Net Income as the Basis for Calculating Damages for Lost Earnings in
PersonalInjury and Wrongful Death Actions: A Casefor Creating Consistency and Fairnessin
Louisiana,51 LA. L. REV. 943 (1991). Aalberts and Harju point out that "[o]ne reason is that
future tax liability is too conjectural ....Moreover, some courts have expressed a reluctance
to inject the issue of income taxes because they felt that it would unduly complicate the trial
and even create more problems than it was worth." Id. at 944; see also Douglas K. Chapman,
No Pain-No Gain? Should PersonalInjury Damages Keep Their Tax Exempt Status?, 9 U.
ARK. LITTLE ROCK L. REV. 407, 427 (1987).
be appropriate, the fairer result was to require the culpable party to pay
more. The principle was simple; uncertainty must be resolved in favor
of the innocent party. To achieve this result, the courts redefined
collectable damages as they concerned income taxation. Plaintiffs were
freed from the obligation of proving net loss after taxes, and defendants
were precluded from proving the amount of loss that would never go to
the plaintiff because of taxation. The traditional burden of proof of
damages would have led to an inequitable result, and was therefore
The same determination was made when defendants sought to have
the amount that plaintiffs received from insurance deducted from
verdicts (collateral benefits). Defendants' theory was simple: plaintiffs
were being double compensated. They had money from insurance
(payment for medical care, for example) and were now going to collect
twice for the same injury. The existence of compensatory insurance
payments should, therefore, prevent plaintiffs from meeting the burden
of proving economic loss. The courts rejected this theory.' 3 Although
the result would be double compensation for plaintiffs, it would be even
worse to give the undeserved benefit to the defendant. Plaintiffs were
again absolved of the burden of proving actual loss. All that was
required was proof of loss before insurance.
Further analysis reveals that a rule allocating the unpaid attorney's
fee to the plaintiff would be both equitable and would not result in
overcompensation. In the above one-hundred-thousand-dollar personal
injury case hypothetical, the plaintiff would receive one hundred
thousand dollars from the negligent attorney. Even a one-third
contingent fee to the second attorney (the attorney representing the
plaintiff in the malpractice action) will leave the plaintiff fully
compensated, as she would be without the negligence. If there is any
undue profit under the proposed system, it would be the increase of
eleven thousand dollars in the fee of the successful attorney in the
malpractice action.'" This is one-third of the benefit presently given to
143. See Helfend v. S. Cal. Rapid Transit Dist., 465 P.2d 61 (Cal. 1970); Harding v. Town
of Townshend, 43 Vt. 536 (1871). Defendants met the same ruling when arguments were
made to offset damages by the amount of salary, sick, and vacation pay given to the plaintiff
by an employer during the period of the injuries. See Motts v. Mich. Cab Co., 264 N.W. 855
144. The malpractice attorney could be thought of as deserving one-third of the sixty-six
thousand dollars that the malpractice caused the plaintiff to lose. If she gets one-third of a
hundred-thousand-dollar recovery, she receives a "windfall" of eleven thousand dollars.
the malfeasor. At least the second attorney has achieved a good result
for the victimized client. If an attorney has to be overcompensated, it
should not be the malfeasor.
In situations in which the underlying case does not involve a
contingent fee, the reversal of the present rule might still leave the client
under-compensated. Assume that the client suffered a
one-hundredthousand-dollar loss in a commercial litigation, and that the attorney's
fee was twenty thousand dollars. The malpractice action would still be a
tort in which the attorney's fee would be at a higher rate (a contingent
fee at one-third of the verdict). The result under the proposed rule
would be that the client would receive a verdict for the full hundred
thousand, rather than sixty-six thousand representing the net after the
undeserved legal fee. The client, however, would then have to give
onethird to the malpractice attorney. The result is that the client would be
left with the exact same sixty-six thousand dollars that she would have
received if properly represented in the original case.
The system cannot be made perfect. However, the above precedents
make it clear that when perfection is not possible the malfeasor should
suffer the inequity. The legal mechanism used to achieve an equitable
result is to relieve plaintiffs from proof requirements on damages. This
approach is appropriate whenever the traditional burdens produce an
inequitable result. It is especially appropriate when the malfeasor is an
attorney and that attorney is benefiting from the very act of negligence
that caused the plaintiff's injuries.
The allocation of the unpaid attorneys' fees in a malpractice action is
exactly the type of rule that should be closely scrutinized to avoid the
appearance of undue favoritism. Like collateral benefits and income
taxes, the only equitable rule is the one that ignores the potentially
excessive benefit to the plaintiff. The key is avoiding any undeserved
benefit to the malfeasor. Malfeasing attorneys must be required to make
full compensation. The silent hand of capture, however, has made the
bench blind to the unsupportable favoritism reflected in this rule. To
achieve this just result, plaintiffs should not be required to prove net loss
after the payment of fees to the malfeasing attorney. The attorney's fee
should not be deducted from a malpractice verdict.
Despite the lack of change in the malpractice tort, there is no reason
to believe that judges lack the desire to protect the recipients of legal
services. Judicially created rules have been developed to protect
consumers of all types of products and services. The plight of the
consumers of legal services has yet to be effectively communicated.
Rules like the two discussed in this Article exist because the profession
has been willfully blind to the danger of over identification with the
business of lawyering. The institutions have been captured, but they
remain unaware of their lack of neutrality. The solution to capture is
education. Capture may never be eliminated; however, a judiciary that
is aware of its biases can control them. Thus, it is vital that doctrines
which unduly protect the bar be held up to close scrutiny, for under such
scrutiny they will fall of their own weight.
The rules that preclude recovery for pain and suffering and reduce
malpractice judgments by deducting the amount of the negligent
attorney's fee are exactly the type of rules that could not persist if the
bench and bar had not been captured. These rules should be
eliminated. Each doctrine can and should be modified to make the legal
malpractice tort a viable mechanism for protecting the purchasers of
41. Id . at 319.
42. Id .
43. Id .
44. Id .
45. Id .
46. Id . at 323. Oddly, the court in Prudentialactually undermined the traditional rule protecting lawyers from any liability outside of the scope of contract privity in the process of ruling for the defendant . The plaintiff, in effect, won the battle but lost the war . See Lucia Ann Silecchia, New York Attorney Malpractice Liability to Non-Clients: Toward a Rule of Reason & Predictability,15 PACE L . REV. 391 ( 1995 ). For a similar limitation on an attorney's duties, see One Nat'l Bank v . Antonellis , 80 F.3d 606 ( 1st Cir . 1996 ). But see Donald v . Garry , 97 Cal. Rptr. 191 ( 1971 ) ; RESTATEMENT (SECOND) OFTORTS § 324A ( 1965 ).
47. Prudential , 605 N.E.2d at 322 -23.
48. Id . at 319.
83. See Pleasant v. Celli , 22 Cal. Rptr. 2d 663 , 668 - 71 (Ct. App. 1993 ); Smith v . Super. Ct., 13 Cal. Rptr. 2d 133 (Ct. App . 1992 ); Suppressed v . Suppressed , 565 N.E.2d 101 , 106 (Ill. App. Ct. 1990 ).
84. See McLaughlin v . Sullivan , 461 A. 2d 123 (N.H . 1983 ) (declining to find the alleged negligent attorney responsible for his client's suicide after a conviction).
91. See Weaver v. Arthur A. Schneider Realty Co., 381 S.W.2d 866 , 869 (Mo. 1964 ); Meech v . Hillhaven W., Inc., 776 P. 2d 488 ( Mont . 1989 ).
92. See Ellen Smith Pryor , Compensationand a ConsequentialModel of Loss, 64 TUL . L. REV. 783 , 808 ( 1990 ).
93. See Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal . 1993 ); Carlson v . Ill. Farmers Ins. Co., 520 N.W.2d 534 , 536 (Minn. Ct. App. 1994 ); Air Florida, Inc . v. Zondler, 683 S.W.2d 769 , 773 (Tex. App. 1985 ).
103. 461 A. 2d 123 (N.H . 1983 ).
104. McPeake , 553 A.2d at 440; McLaughlin, 461 A.2d at 124.
105. Fuller , 322 N.E.2d at 266.
106. McPeake , 553 A.2d at 443; McLaughlin,461 A.2d at 127.
107. McPeake , 553 A.2d at 443; McLaughlin, 461 A.2d at 127.
108. See Al Baker, Facing Murder Charge in Classmate'sDeath, Hofstra Student is Held on Suicide Watch , N.Y. TIMES , May 19 , 2001 , at B5 (discussing a student charged with murder and mutilation of a classmate held on suicide watch); Lisa Teachey, Yates' Lawyers Plan to Enter Insanity Plea , HOUSTON CHRONICLE, July 31 , 2001 , at Al ( discussing a woman indicted on two charges of capital murder for allegedly drowning her five children in a bathtub remains on suicide watch).
109. See Myers v. County of Lake , 30 F.3d 847 ( 7th Cir . 1994 ); Simmons v . City of Philadelphia , 947 F.2d 1042 ( 3d Cir . 1991 ); Molton v . City of Cleveland , 839 F.2d 940 ( 6th Cir . 1988 ).
111. See Richardson v. Chapman , 676 N.E.2d 621 ( II1 . 1997 ) ; American States Ins . Co. v Audubon Country Club, 650 S.W.2d 252 ( Ky . 1983 ) ; McDougald v . Garber , 536 N.E. 2d 372 (N.Y . 1989 ); Bovbjerg, supra note 97, at 919- 24 . ( N.J. Super . Ct. App. Div. 1997 ). The rule is not absolute, however, since New Jersey would permit quantum meruit recovery in cases in which the attorney, although negligent, provided such beneficial services that the deprivation of all compensation would be unfair . See Strauss v. Fost , 517 A. 2d 143 (N.J. Super . Ct. App. Div. 1986 ).
138. The effect of the present allocation method can be compared to the tax expense budget. The government loses income that it defined as not subject to tax just as much as it loses income that it permits to be deducted . See Gordon T. Butler , The Line Item Veto and the Tax Legislative Process: A Futile Effort at Deficit Reduction, But a Step Toward Tax Integrity,49 HASTINGS L .J. 1 , 63 - 69 ( 1997 ) ; Douglas A. Kahn, Accelerated Depreciation-Tax Expenditure or ProperAllowance for MeasuringNet Income , 78 MICH. L. REV. 1 ( 1979 ).
139. See Edward L. Rubin , The Conceptof Law and the New Public Law Scholarship , 89 MICH. L. REV. 792 , 800 - 01 ( 1991 ).
140. See Thurman v. State Farm Mut. Auto. Ins. Co., 942 P.2d 1327 (Colo. Ct. App . 1997 ); Columbus Fin ., Inc. v. Howard, 327 N.E.2d 654 ( Ohio 1975 ).