A Tort in Search of a Remedy: Prying Open the Courthouse Doors for Legal Malpractice Victims
A Tort in Search of a Remedy: Pr ying Open the Courthouse Doors for Legal Malpractice Victims
Susan S. Fortney 0 1
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1 Texas A&M University School of Law , USA
The rule of law and access to justice go hand in hand. International-law
expert Professor Francesco Francioni describes the connection as follows:
In international law, as in any domestic legal system, respect and
protection of human rights can be guaranteed only by the availability of
effective judicial remedies. When a right is violated, access to justice is
of fundamental importance for the injured individual and it is an essential
component of the system of protection and enforcement of human rights.1
The Canadian Bar Association Access to Justice Committee takes a similar
approach, explaining that justice “ensures fairness and equality for all, and
respect for all who come before it. Being accorded respect from a justice
system means being heard and provided with an effective, meaningful
Using this broad connotation of justice, this Article questions whether
many victims of legal malpractice3 are denied access to justice. In writing
* Professor of Law and Associate Dean for Research and Faculty Development, Texas
A&M University School of Law. Professor Fortney thanks Professor Bruce Green and the
members of the Fordham Law Review for their assistance and for including her in the
fascinating colloquium entitled Civil Litigation Ethics at a Time of Vanishing Trials held at
Fordham University School of Law. For an overview of the colloquium, see Judith Resnik,
Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto
Aggregations, Arbitration Mandates, and Privatized Processes, 85 FORDHAM L. REV. 1899
1. Francesco Francioni, The Rights of Access to Justice Under Customary International
Law, in ACCESS TO JUSTICE AS A HUMAN RIGHT 1 (Francesco Francioni ed., 2007).
2. ACCESS TO JUSTICE COMM., CANADIAN BAR ASS’N, REACHING EQUAL JUSTICE
REPORT: AN INVITATION TO ENVISION AND ACT 62 (2013), http://www.cba.org/
FinalReport-eng.pdf [https://perma.cc/9V8M-8JUS]. This definition illustrates how authors
around the world take a comprehensive view when discussing access to justice. In the
United States, the term “access to justice” often refers to access to affordable legal services.
See, e.g., Access to Justice, U.S. DEP’T JUST., https://www.justice.gov/atj (last visited Mar.
) [https://perma.cc/MN4P-R5GC]. In discussing access to justice, this Article takes
the more inclusive global position on the term “access to justice.”
3. This Article uses “legal malpractice” as an umbrella term to cover a range of
professional liability claims against attorneys, including claims based on negligence, breach
of fiduciary duty, and intentional torts. See SUSAN SAAB FORTNEY & VINCENT R. JOHNSON,
LEGAL MALPRACTICE LAW: PROBLEMS AND PREVENTION 19 (2d ed. 2015).
about the regulatory function of legal malpractice as a tort, Professor John
Leubsdorf argues that legal malpractice relates to three important functions
of the law of lawyering: “[D]elineating the duties of lawyers, creating
appropriate incentives and disincentives for lawyers in their dealings with
clients and others, and providing access to remedies for those injured by
improper lawyer behavior.”4 Arguably, persons injured by lawyer
misconduct are denied access to justice if our civil liability system does not
provide them access to meaningful redress.
The economics and common law rules relating to legal malpractice
claims present significant challenges for persons injured by lawyers’ acts or
omissions. Both scholars and practitioners have examined the obstacles
that a legal malpractice plaintiff must overcome. For example, a number of
plaintiffs’ attorneys have posted online commentaries discussing the
practical problems malpractice plaintiffs face, as well as the dynamics and
legal principles that impede their ability to prevail and to collect judgments
and settlements.5 In addition, various scholars have published articles
examining specific issues that make it difficult for plaintiffs to recover in
legal malpractice cases.6 Notably, Professors Lawrence W. Kessler and
Benjamin Barton provide context for why and how the legal system favors
lawyers in legal malpractice cases. In his 2002 article, Professor Kessler
thoughtfully examines how the dynamic of “capture” explains why certain
liability doctrines have not been incorporated into the tort of legal
malpractice, preventing those injured by negligent legal services from
obtaining compensation.7 He argues that lawyers who regulate the bar,
through their roles as judges, legislators, and advocates, have had their
neutrality undermined by overidentification with the legal profession.8 As a
result, he maintains that the “legal malpractice tort, alone, retains defendant
protections that have been denied to others.”9 To support his argument,
Professor Kessler examines in depth two discrete malpractice rules that
favor lawyers.10 He concludes by advocating that the rules be modified “to
make the legal malpractice tort a viable mechanism for protecting the
purchasers of legal services.”11
Professor Barton also questions the close relationship between the
regulated bar and the judiciary.12 In his seminal piece on judicial bias, he
proposes the following lawyer-judge hypothesis:
[M]any legal outcomes can be explained, and future cases predicted, by
asking a very simple question: is there a plausible legal result in this case
that will significantly affect the interests of the legal profession (positively
or negatively)? If so, the case will be decided in the way that offers the
best result for the legal profession.13
To support his hypothesis, Barton uses a number of examples, including a
handful of rules in legal malpractice cases that favor lawyer-defendants.14
Both Professors Barton and Kessler point to the value of exposing the
prolawyer phenomenon, suggesting that shedding light on judicial bias may
be “enough to shift the law in some of these areas.”15 As Professor Barton
states, “Perhaps pointing out the cumulative effects of these unconscious
decisions [that favor lawyers] will lead to some reforms.”16 Professor
Kessler makes a similar observation, noting that the solution to capture is
In that same educational spirit, this Article takes a systematic approach to
examining the obstacles encountered when injured persons seek
compensation for injuries suffered at the hands of lawyers. Part I examines
the numerous hurdles that an injured person must surmount when
commencing a legal malpractice action. Assuming that an injured person
overcomes those obstacles, Part II reviews the difficulties that malpractice
plaintiffs encounter in pursuing their claims, including the various rules and
doctrines that favor legal malpractice defendants. Even after a plaintiff
obtains a judgment, Part III considers the obstacles that plaintiffs encounter
in actually collecting on that judgment. In an attempt to better balance the
public’s interest in holding lawyers accountable with the
lawyer10. See id. at 477–91 (analyzing how malpractice defendants are favored by rules related
to the compensability of emotional harm and deduction of certain attorney’s fees from a
11. Id. at 499.
12. See generally Benjamin H. Barton, Do Judges Systematically Favor the Interests of
the Legal Profession?, 59 ALA. L. REV. 453 (2008).
13. Id. at 454.
14. See id. at 492–502 (discussing how the law favors defendants in legal malpractice
cases compared to defendants in medical malpractice cases). In this examination, Professor
Barton focuses on requirements for proving causation and establishing privity in legal
malpractice cases. See id.
15. Id. at 503 (explaining that some or all of the effects are the result of unconscious
judicial bias toward their own experiences and naturally increased empathy for litigants who
share similar backgrounds and experiences).
17. Kessler, supra note 7, at 499. Although capture may not be eliminated, Professor
Kessler suggests that “a judiciary that is aware of its biases can control them.” Id.
defendant’s interest in having the law not impose unfair burdens,18 Part IV
proposes specific changes and suggests that attorneys and judges should
recognize the link between financial accountability and professionalism by
supporting reforms to provide access to justice to consumers injured by
I. CHALLENGES IN COMMENCING
A LEGAL MALPRACTICE LAWSUIT
Before embarking on a legal action against a lawyer, a prospective
plaintiff must, of course, recognize that she has a potential malpractice
claim. Due to the nature of the attorney-client relationship, however,
injured persons may be completely unaware that the attorney has engaged
in misconduct. From the outset of the representation, most inexperienced
users of legal services largely lack information to judge their lawyers’
conduct.19 Due to the information disparities between lawyers and their
clients, market principles do not apply to the attorney-client relationship,20
potentially impacting the ability of clients to control their representation
and to judge their lawyers’ performance.21 Without adequate information,
clients may be forced to rely on their lawyers’ explanations of the outcomes
of representation, unaware of the fact that they were victims of legal
Clients might not be left in the dark if more lawyers recognized that
ethical rules and fiduciary principles impose duties on them to disclose their
own malpractice to their clients. Despite the fact that experts maintain that
the duty to disclose one’s own malpractice is “well-grounded” in the
American Bar Association (ABA) Model Rules of Professional Conduct
18. Professor Vincent R. Johnson makes this point in the following introduction to legal
In some cases, these rules work to hold lawyers accountable for harm to persons
resulting from errant practices. In other cases, the relevant principles insulate
lawyers from damage awards when it would be unfair to impose legal
responsibility. Thus, legal malpractice law attempts to strike a fair balance
between the public’s interest in consumer protection and the legal profession’s
need for freedom of action.
VINCENT R. JOHNSON, LEGAL MALPRACTICE LAW IN A NUTSHELL 1 (2011).
19. See Katherine R. Kruse, The Jurisprudential Turn in Legal Ethics, 53 ARIZ. L. REV.
493, 494 (2011) (“Clients come to lawyers to find out what the law requires, prohibits, or
allows them to do.”).
20. See Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and
the Legal Profession, 128 U. PA. L. REV. 41, 90 (1979) (“The information disparities
between lawyer and client negate the usual market assumption that, at the beginning of a
transaction, the buyer can tell the seller exactly what he wants and thereby ‘control’ the
21. See id. at 104 (suggesting that the clients are better prepared to monitor their counsel
when they receive reliable information and give their informed consent).
22. See generally Benjamin P. Cooper, Attorney Self-Disclosure, 79 U. CIN. L. REV. 697
(2010) (discussing information gaps and the theoretical, moral, and public policy
justifications for requiring lawyers to disclose lawyer-specific information, and proposing an
amendment to the rules of professional conduct that would require more disclosure).
and supported by fiduciary law,23 there is a “dearth of direct authority
requiring self-reporting.”24 In discussing lawyers’ failure to honor this
professional and fiduciary duty, Professor Benjamin P. Cooper provides the
The lawyer may not believe he or his firm has committed malpractice or
may otherwise be unaware that he or his firm has committed an act of
malpractice. He may be unaware of his duty to report his malpractice. He
may want to try to fix the error. A more sinister explanation is that the
lawyer has decided to intentionally hide his mistake from his client.25
Lawyers may be more inclined to disclose their own malpractice if more
courts recognized an independent cause of action for lawyers’ failure to
self-report. Around the United States, reported decisions are split on the
ability of a client to maintain such a separate claim.26 Until the majority of
courts recognize a separate cause of action for failure to self-report,27 many
lawyers may continue to take an ostrich approach to disclosing their own
malpractice to clients. As a result, clients may be wholly unaware of the
basis for a potential legal malpractice claim.
Developments related to in-firm communications also affect the ability of
clients to learn information pertinent to ethics and malpractice concerns.
Starting in the late 1980s, courts began to address the application of the
attorney-client privilege to internal firm communications between the firm’s
designated in-house counsel and other firm personnel.28 Early cases that
addressed this in-firm privilege refused to shield certain communications,
applying what is referred to as “current-client” or “fiduciary” exceptions to
the attorney-client privilege.29 In response to those opinions, the organized
bar pushed for a broader recognition of the in-firm privilege. In 2013, the
House of Delegates of the ABA adopted a resolution urging all judicial and
other governmental bodies to recognize the in-firm privilege and not subject
it to fiduciary or current-client exceptions.30 Now, the tide has shifted with
more reported opinions allowing firms to shield communications between
in-firm counsel and firm personnel when communications were made for
the purpose of facilitating the rendition of professional services to the law
firm.31 Various commentaries treat the expanded recognition of the
privilege as favorable.32 Although the trend may benefit firms that want to
shield information from clients, it hurts clients who are unaware of possible
conflicts of interest and other material information impacting the
representation.33 Rather than encouraging lawyers to disclose their
malpractice, recognition of a broad privilege may encourage lawyers to
circle the wagons and shield their communications from current clients. As
a result, it may be harder for current clients to discover communications
related to malpractice committed by their lawyer-fiduciaries.34
Even when injured persons are aware of a potential legal malpractice
claim, they face the hurdle of finding an experienced lawyer to pursue it.
Webpages of a number of legal malpractice plaintiffs’ attorneys describe
the difficulties that plaintiffs will encounter in suing attorneys. Unlike
other plaintiffs’ attorneys who paint bright pictures of possible recovery,
both the titles and content of these pieces warn prospective clients about the
hurdles to overcome in legal malpractice cases.35 These online
commentaries describe the range of dilemmas facing legal malpractice
plaintiffs, starting with the first step of hiring a competent malpractice
lawyer to handle the matter.
For decades, prospective malpractice plaintiffs faced a “conspiracy of
silence,” meaning that as a matter of professional courtesy lawyers did not
rts.authcheckdam.pdf [https://perma.cc/TTZ7-NKDF]. “Supporters of the ABA’s position
argue that internal ethical conversations should be privileged, to encourage lawyers to seek
ethical advice.” Bruce Rubin & KC Harding, In-House Attorney-Client Privilege in the Wake
of Crimson Trace, A.B.A. (Aug. 12, 2014), http://apps.americanbar.org/litigation/
31. For an overview of the case developments, see Glen R. Olson et al., Ethics and
Internal Firm Communications Regarding Lawyer Malpractice Claims, 45 BRIEF 52 (2016).
32. See, e.g., Karen Rubin, Firm Counsel Privilege Prevails; New York Joins Favorable
Trend in Recognizing Doctrine, LAW FOR LAW. TODAY (July 14, 2016),
http://www.thelawforlawyerstoday.com/2016/07/2676/ [https://perma.cc/WZS9-VZGL]. On
June 30, 2016, a New York state appellate court joined other courts in recognizing that the
in-firm privilege applies to communications between law firm attorneys and the firm’s
inhouse general counsel, even when the communications related to a current client. See Stock
v. Schnader Harrison Segal & Lewis LLP, 35 N.Y.S.3d 31, 33 (App. Div. 2016).
33. The Association of Corporate Counsel filed an amicus brief in Crimson Trace Corp.
v. Davis Write Tremaine LLP, 326 P.3d 1181 (Or. 2014), arguing that the application of
attorney-client privilege to in-firm communications would corrode trust between in-house
corporate counsel and outside counsel and would “lead clients to hesitate to seek outside
legal advice.” Brief of Amicus Curiae Ass’n of Corp. Counsel in Support of
PlaintiffAdverse Party Crimson Trace Corp. at 3, Crimson Trace, 326 P.3d 1181 (No. S061086),
2013 WL 5958906, at *3; see also Rubin & Harding, supra note 30.
34. In many states, the existence of an ongoing attorney-client relationship will toll the
statute of limitations. See FORTNEY & JOHNSON, supra note 3, at 332–34 (discussing the
“continuous representation” rule).
35. See, e.g., Altschuler, supra note 5; What Are the Typical Hurdles in a Legal
Malpractice Case?, supra note
criticize, sue, or testify against other lawyers.36 Although more lawyers are
now willing to pursue legal malpractice claims, prospective plaintiffs in
various circles and communities may still encounter resistance. Some
lawyers are unwilling to represent plaintiffs, believing, “There but for the
grace of God go I.”37 Others may resist taking a case that has the prospect
of increasing malpractice exposure for all lawyers.
Persons who succeed in locating a lawyer willing to pursue a malpractice
case must still carefully screen the lawyer to determine if the lawyer has the
requisite expertise to handle the matter. “Understanding what constitutes
malpractice and figuring what to do next is a complicated procedure,
especially when you are dealing with the repercussions of a failed legal
The likelihood of retaining a lawyer with the necessary expertise to
handle a legal malpractice case will largely turn on the economics of the
representation. “Legal malpractice cases are particularly difficult and
expensive,” partly because lawyers become formidable opponents when
they believe that their assets and reputations are threatened.39 Thus, either
the prospective client must possess the means to fund the litigation, or the
underlying case must have significant value to support a malpractice
attorney handling the litigation on a contingent fee basis.40 Although
contingency fee decisions will depend on the particular facts of the
representation, plaintiffs’ attorneys may require a minimum amount of
damages, such as $300,000, before the attorney agrees to a contingency
Plaintiffs’ legal malpractice attorneys are also “rare” because these types
of professional liability cases generally promise a lower return on the
attorney’s efforts than other types of cases.42 This is due to both the
complexity and the higher costs of trying a legal malpractice case.43 “For
these simple reasons, only the most promising of legal malpractice cases
will be considered by the few lawyers willing to practice in this area.”44
The use of expert testimony contributes to both the cost and complexity
of legal malpractice cases.45 Under a “‘widely followed rule,’ the plaintiff
‘in a legal malpractice action . . . must present expert testimony establishing
the standard of care unless the attorney’s lack of care and skill is so obvious
that the trier of fact can find negligence as a matter of common
knowledge.’”46 The role of the expert is to assist the fact-finder in
understanding the standard of care applicable to the lawyer-defendant’s
To be able to provide such testimony, experts commonly devote many
hours to reviewing case material, conducting research, preparing reports or
affidavits, and preparing to testify.47 Experts typically bill on an hourly
basis because the common law rules in most jurisdictions prohibit lawyers
from paying an expert on a contingent fee basis.48 This makes hiring
experts an expensive proposition.49
Understanding that hiring experts can be expensive, experienced
plaintiffs’ attorneys consider expert fees when evaluating the economics of
pursuing a legal malpractice claim.50 The expense of hiring experts may
weigh heavily in a plaintiffs’ attorney’s decision to decline handling a claim
when the amount of recovery would not cover litigation costs. In many
cases, the cost of the expert alone may prevent a plaintiff from finding a
lawyer who will take the case on a contingency fee basis.51
Assuming a plaintiffs’ attorney determines that the amount of damages
would support hiring an expert, the next hurdle is finding the “right” expert.
45. According to one legal malpractice specialist, “One of the reasons why legal
malpractice cases are generally complex is because a client suing a lawyer needs to hire at
least two lawyers, the one to bring the suit, and another lawyer from another firm to be the
expert.” Howard Altschuler, You Have a Legal Malpractice Expert?: Great . . . but That’s
Still NOT Good Enough . . ., LEGAL MALPRACTICE L. CTR. (Aug. 27, 2014),
46. FORTNEY & JOHNSON, supra note 3, at 77 (quoting Television Capital Corp. of
Mobile v. Paxson Commc’ns Corp., 894 A.2d 461, 469 (D.C. 2006)).
47. See JOHNSON, supra note 18, at 74–75.
48. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 117 cmt. c
LAW INST. 2000)
(“A fee paid an expert witness may not be contingent on the content of the
witness’s testimony or the result in the litigation.”); see also MODEL RULES OF PROF’L
CONDUCT r. 1.5 cmt. 3 (AM. BAR ASS’N 2016).
49. See JOHNSON, supra note 18, at 74–75 (reviewing the duties and compensation of
experts in legal malpractice cases).
50. Id. at 75.
51. Of course, a plaintiffs’ attorney wants to avoid liability for the cost of hiring experts.
Unless the lawyer disclaims liability at the time of contracting, a lawyer is liable for the
compensation of an expert whom the lawyer has hired when the expert provides services
used by the lawyer and the lawyer knows or reasonably should know that the expert relies on
the lawyer’s credit. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 30(2)(b)
The selection and use of qualified experts can make or break a legal
malpractice claim. Thus, a threshold concern in commencing a legal
malpractice case is for the plaintiff to find an experienced legal malpractice
attorney who understands the importance of retaining a qualified and
credible expert. Recognizing the specialized knowledge that an attorney
needs to competently handle a legal malpractice case, two experienced
plaintiffs’ attorneys warned that “counsel desiring to represent clients who
wish to sue their former lawyers ought to be extremely careful, lest the
prosecutor become the prosecuted.”52
II. CHALLENGES IN TRYING LEGAL MALPRACTICE CLAIMS
As discussed in Part I, a plaintiff’s ability to successfully sue her lawyer
largely depends on hiring an attorney who is experienced in handling legal
malpractice cases. Once retained, plaintiffs’ attorneys must be prepared to
deal with numerous challenges faced by plaintiffs in legal malpractice
cases. This part surveys those difficulties, starting with the selection of
theories of liability to assert.
A. Selection of Theories of Liability
In commencing a lawsuit, the first step for the plaintiff’s counsel is to
articulate the causes of action that can be established by a preponderance of
the evidence. When a plaintiff is suing an attorney, this determination can
be tricky because “courts . . . are not in agreement on the exact nature of
and parameters for” the different professional liability claims against
attorneys.53 Some courts use the term “legal malpractice” to refer only to
negligence claims.54 Others take the approach used in this Article, using
the term as an umbrella reference covering different causes of action,
including negligence and breach of fiduciary duty.55
A plaintiffs’ attorney must differentiate the theories of liability available
in the particular jurisdiction. This is no easy feat because the case law
across jurisdictions is perplexing and inconsistent.56 For instance, while
some courts allow claims when the operative facts supporting the breach of
fiduciary duty and negligence claims are the same, others refuse to do so.57
This creates both confusion and uncertainty even for the most experienced
plaintiffs’ attorney who seeks to pursue separate breach of fiduciary duty
and negligence claims.
When possible, a plaintiff should attempt to differentiate liability theories
by pleading claims separately, marshaling evidence, and obtaining separate
findings on each cause of action. An assessment of malpractice cases
reveals how plaintiffs may face dismissal of claims that courts deem to be
duplicative. For example, in Axcess International, Inc. v. Baker Botts,
L.L.P.,58 the plaintiff asserted a breach of fiduciary duty claim and a
negligence claim.59 The jury charge only included a negligence claim
because the judge had dismissed the breach of fiduciary duty claim.60 The
jury awarded the plaintiff $40.5 million on the negligence claim;61
however, the jury also concluded that the plaintiff should have discovered
the negligence more than two years before the negligence claim was
brought.62 Thus, recovery on the negligence claim was barred by the
applicable two-year statute of limitations.63 Had the plaintiff convinced the
trial court that the breach of fiduciary duty claim was supported by evidence
and not duplicative, the plaintiff might have secured a multimillion dollar
judgment. As the case illustrates, plaintiffs face real difficulties in pleading
and proving different causes of action on which judgments can be obtained
B. Establishing the Elements of a Negligence Claim Generally
In a legal malpractice case based on negligence, the plaintiff carries the
burden of establishing duty, breach, causation, and damages by a
preponderance of the evidence.64 Because various defendant-friendly
protections exist in legal malpractice law, it is very difficult for many
plaintiffs to carry the burden of proving each element of a negligence
Starting with duty, the first element of a negligence claim, a plaintiff
must establish that the defendant owed a duty of care to the plaintiff.
Lawyers clearly owe a duty of care to their clients; however, duties owed to
prospective clients and nonclients are far more limited.66 “Traditionally,
nonclients found lack of privity to be a serious obstacle to bringing claims
against lawyers who did not represent them.”67 Although various courts
have eroded the privity requirement, some states continue to adhere to a
strict privity rule.68 Even in states that allow certain types of third-party
claims, the tests for third-party liability make it very difficult for nonclients
to sue attorneys.69 In addition, some states have adopted statutory limits on
attorneys’ liability to nonclients.70
Next, the plaintiff must tackle the second element of the negligence
claim: breach. As noted above, a plaintiff generally must present expert
testimony related to the breach of the standard of care.71 From the
perspective of a plaintiff seeking damages of less than six figures, the
expert requirement may make the case economically infeasible to pursue.72
The economics of a legal malpractice case and the availability of legal
malpractice as a remedy could completely change in some cases if a
plaintiff could rely on negligence per se doctrine and pursue a negligence
claim based on the defendant’s violation of applicable disciplinary rules.73
Unfortunately, from the standpoint of a plaintiff, such an effort will be
unsuccessful because of language included in the preface to the applicable
disciplinary rules. Specifically, the Model Rules of Professional Conduct
and the state versions of those rules expressly provide that the disciplinary
rules do not define standards of civil liability for professional conduct.74
Despite the criticism of this language as being “self-serving economic
protectionism, drafted by the organized bar,” courts continue to point to this
language.75 This language effectively guts a plaintiff’s ability to rely on
negligence per se.76
C. Proving Causation with a Trial Within a Trial
Although the duty and breach elements present hurdles for legal
malpractice plaintiffs, proving causation may be the most complex aspect of
a legal malpractice claim. Regardless of whether the alleged malpractice
arose out of civil or criminal representation, the plaintiff must prove both
factual and legal causation.77
1. Civil Litigation
To establish factual causation where the underlying representation
involves a civil matter, the malpractice plaintiff must prove by a
preponderance of the evidence that “but for” the lawyer-defendant’s
misconduct, the harm would not have occurred and the plaintiff would have
obtained a more favorable judgment.78 This often means, however, that
there must be a “trial within a trial” in which all of the “issues that would
have been litigated in the previous action are litigated between the plaintiff
and the plaintiff’s former lawyer, with the latter taking the place and
bearing the burdens that properly would have fallen on the defendant in the
original action.”79 Over twenty-five years ago, Professor Joseph Koffler
asserted that this alignment of burdens is “not consistent with common law
principles as it is not an adversarial proceeding between the real parties in
interest in the underlying action.”80
One causation twist relates to the application of the trial-within-a-trial
requirement when a plaintiff settled the underlying civil action, allegedly
relying on the lawyer’s advice. These so-called “settle-and-sue” cases
should fit within the trial-within-a-trial framework as follows:
The settling client should have to prove not just that he would have won
the underlying case, but that he also would have recovered more than the
amount of the settlement in that trial. The difference between the
theoretical recovery in the underlying case and the settlement would
constitute the client’s damages.81
Although many courts have allowed settle-and-sue claims to go forward,
others have rejected them, largely treating the claims as speculative.82 A
few courts have determined that allowing plaintiffs to sue their lawyers
after experiencing settlor’s remorse would violate strong public policy that
encourages settlements.83 From the perspective of plaintiffs, those courts
that reject the settle-and-sue claims effectively immunize lawyers from civil
liability for claims arising out of settlements.84 Even in jurisdictions that
allow malpractice claims arising out of settlements, plaintiffs’ attorneys
may decline to handle these cases because they feel like winning that kind
of malpractice claim is too difficult.85
3. Transactional Matters
When the alleged misconduct arose in connection with an attorney’s
handling of transactional matters, courts require the plaintiff to demonstrate
that an underlying position was compromised or negatively impacted due to
the negligence of the lawyer-defendant.86 Although transactional
representation does not involve an underlying case, the term “trial within a
trial” may still be used to describe the plaintiff’s burden to demonstrate that
the attorney compromised a meritorious underlying position.87 When the
underlying transaction was complex, it tends to be a herculean feat for the
plaintiff to satisfy its burden without confusing the jury.
4. Criminal Cases
The application of causation principles also provides a great deal of
protection to criminal defense attorneys. Notwithstanding that a plaintiff
may be able to establish unequivocally that the defense attorney’s conduct
fell below the applicable standard of care, the criminal defendant must
prove more than the trial within a trial: in the great majority of
jurisdictions, criminal defendants must either obtain postconviction relief or
prove that they were actually innocent.88 Although courts use different
approaches, a legal malpractice plaintiff’s unlawful conduct generally
shields lawyer-defendants from liability for their misconduct.89
Pennsylvania Supreme Court concluded, “Simply stated, we will not permit a suit to be filed
by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff
agreed, unless that plaintiff can show he was fraudulently induced to settle the original
action.” Id. at 1348. But see Thomas v. Bethea, 718 A.2d 1187, 1193 (Md. 1998) (noting that
the Muhammad decision represents a “distinct minority view”).
84. In repudiating authority that limits the ability of a plaintiff to sue following
settlement, the New Jersey Supreme Court explained:
Although we encourage settlements, we recognize that litigants rely heavily on the
professional advice of counsel when they decide whether to accept or reject offers
of settlement, and we insist that the lawyers of our state advise clients with respect
to settlements with the same skill, knowledge, and diligence with which they
pursue all other legal tasks.
Ziegelheim v. Apollo, 607 A.2d 1298, 1304 (N.J. 1992).
85. See, e.g., Legal Malpractice, supra note 40 (explaining why the firm declines to
handle postsettlement legal malpractice cases).
86. See John M. Palmeri & Franz Hardy, Application of the “Case Within a Case”
Standard, FOR DEF., Mar. 2008, at 48–49 (noting that the majority of courts have applied the
case-within-a-case standard to transactional malpractice claims).
87. See id. at 49.
88. See Vincent R. Johnson, The Unlawful Conduct Defense in Legal Malpractice, 77
UMKC L. REV. 43, 63–64, 64 nn.131–32 (2008).
89. Some courts focus on causation, treating the unlawful conduct as an obstacle the
plaintiff must overcome in the prima facie case. See id. at 76–77 (citing Shahbaz v. Horwitz,
The case of Peeler v. Hughes & Luce90 illustrates the harshness of the
majority rule. In that case, Carol Peeler was accused of criminal tax fraud
and represented by a partner in a prestigious firm. Facing the possibility of
incarceration and losing custody over her minor children, Peeler entered a
guilty plea.91 Thereafter, Peeler sued her attorney for legal malpractice,
asserting that the partner “failed to tell her that the United Stated Attorney
had offered her absolute transactional immunity.”92 In support of her
negligence claim, Peeler relied on the affidavit of the prosecutor stating that
he had offered immunity through her defense lawyer.93 In response to the
negligence claim, the firm filed a motion for summary judgment on the
basis of the plea and conviction.94 The Texas Supreme Court affirmed the
trial court’s dismissal of the negligence claim because Peeler’s conviction
was not overturned.95 Joining with the majority of courts, the court held
that “plaintiffs who have been convicted of a criminal offense may negate
the sole proximate cause bar to their claim for legal malpractice in
connection with that conviction only if they have been exonerated on direct
appeal, through post-conviction relief, or otherwise.”96 In reaching this
conclusion, the court rejected the plaintiff’s claim that the lawyer’s
misconduct deprived her of the opportunity to escape prosecution entirely
because she was unaware of the immunity offer.97
In Peeler, the Supreme Court of Texas effectively declined to apply the
“loss of chance” doctrine, under which a plaintiff should be compensated
when a defendant’s tortious conduct “destroys or reduces a victim’s
prospects for achieving a more favorable outcome.”98 While some courts
have applied the loss of chance doctrine in medical malpractice cases,
lawyer-defendants in the United States have largely been successful in
convincing courts that the doctrine should not extend to legal malpractice.99
No. G037299, 2008 WL 808034, at *9–10 (Cal. Ct. App. Mar. 27, 2008)). Others allow
attorneys to use the unlawful conduct as a defense. See id. at 62–77. In both camps, the dicta
in opinions commonly make public policy arguments for not allowing criminal wrongdoers
to benefit. See id.
90. 909 S.W.2d 49
4 (Tex. 1995
91. See id. at 498.
92. See id. at 496.
93. See id. at 498.
94. See id. at 496.
95. Id. at 498. As explained by the court, as a matter of law, it was the plaintiff’s
“illegal conduct rather than the negligence of a convict’s counsel that is the cause in fact of
any injuries flowing from the conviction, unless the conviction has been overturned.” Id.
96. Id. at 497–98.
97. Id. at 498 (“The lost opportunity of an admittedly guilty person to escape
prosecution because of her lawyer’s negligence does not override the public policy against
shifting the consequences of a crime to a third party.”).
98. Joseph H. King, Jr., “Reduction of Likelihood” Reformulation and Other Retrofitting
of the Loss-of-a-Chance Doctrine, 28 U. MEM. L. REV. 491, 492 (1998).
99. See Benjamin Lajoie, Reopening the Discussion of the Loss of Opportunity Doctrine
in New Hampshire: A Look at Decisions Made in Light of Current Times, 13 U.N.H. L. REV.
99, 105 (2015) (noting that jurisdictions are “relatively evenly split on whether to hold
doctors liable in situations where the doctor has deprived the patient of an opportunity for
better outcome”). For a discussion of courts’ rejection of the doctrine in legal malpractice
cases, see FORTNEY & JOHNSON, supra note 3, at 116–17. Professors Barton and Kessler
A court could entertain the loss of chance doctrine to mitigate the
harshness of a strict “but for” test. For example, in Vahila v. Hall,100 the
Supreme Court of Ohio reversed a summary judgment in favor of the
lawyer-defendant, concluding that it would be inequitable to always require
plaintiffs to prove that they would have been successful in the underlying
matter.101 As stated by the court, a “strict ‘but for’ test also ignores
settlement opportunities lost due to the attorney’s negligence.”102 Despite
the persuasive rationale for the loss of chance doctrine described in Vahila,
scholars who have examined the viability of loss of chance doctrine in legal
malpractice cases suggest that it is an uphill battle for plaintiffs because of
the judicial bias in favor of the legal profession and captured regulators who
craft and apply rules that protect lawyers.103
5. Obstacles Caused by the
Trial-Within-a-Trial Requirement Generally
Due to the trial-within-a-trial requirement, the lawyer-defendant defends
her case by demonstrating that the plaintiff would not have prevailed in that
underlying action. In attempting to destroy the plaintiff’s case, the
lawyerdefendant may have the ability to use the plaintiff’s confidences to poke
holes in the plaintiff’s case. While representing the plaintiff in the
underlying action, the attorney likely learned about the weaknesses in the
plaintiff’s case, obtaining confidential information from the plaintiff and
others.104 Once sued, the attorney may use those confidences against the
plaintiff, turning the fiduciary relationship on its head.105
Moreover, the trial-within-a-trial requirement often makes the legal
malpractice claim both complex and costly. In addition to presenting
evidence to prove the lawyer-defendant’s malpractice, the plaintiff must call
witnesses and offer other evidence to establish that the plaintiff would have
prevailed in prosecuting or defending the underlying case.106 This is
especially difficult when the underlying case was never tried or when the
passage of time makes admissible evidence unavailable.107 From the
standpoint of obtaining evidence, another complication may be obtaining
point to courts’ refusals to apply loss of chance doctrine in legal malpractice cases as an
example of captured regulators and judicial bias in favor of the legal profession. See Barton,
supra note 12, at 494–96; Kessler, supra note 7, at 474–77.
100. 674 N.E.2d 1164 (Ohio 1997).
101. Id. at 1170 (concluding that such a requirement would be “unjust, making any
recovery virtually impossible for those who truly have a meritorious legal malpractice
102. Id. at 1169.
103. See Barton, supra note 12, at 494–96; Kessler, supra note 7, at 473–77.
104. See Barton, supra note 12, at 493 (stating that the “original attorney may know the
facts, law, and weaknesses of the case backwards and forwards”).
105. See Koffler, supra note 80, at 75 (stating that “legal doctrine in this area
surreptitiously mocks the fiduciary relationship of the attorney to the client”).
106. See Developments in the Law—Lawyers’ Responsibilities and Lawyers’ Responses,
107 HARV. L. REV. 1547, 1568 (1994).
107. Id. at 1568–69.
discovery from the defendant in the underlying case because the defendant
is not a party in the legal malpractice case.108
The layers of complexity involved in having a trial within a trial also
contribute to jury confusion.109 To present the case to the jury in a way that
they can understand, a plaintiff needs an experienced malpractice attorney.
Ironically, veteran malpractice attorneys may be the hardest to convince to
accept representation, precisely because they understand how procedural
and substantive law protects defendants. This points to what one plaintiffs’
attorney characterizes as the “biggest advantage” for defendants stemming
from the trial-within-a-trial method: the “meritorious cases which are never
filed because of the costs and complexities associated with litigating two
Finally, for both transactional- and litigation-based legal malpractice
cases, it may not be enough for the plaintiff to establish by a preponderance
of the evidence that the plaintiff would have prevailed. The majority of
jurisdictions require that the plaintiff show that the underlying claim would
have been collectable.111 From the standpoint of a plaintiff who relied on
the lawyer-defendant to screen and prosecute a claim, query whether it is
fair to require the plaintiff to establish collectability to recover in the
malpractice case. Absent some showing that the attorney warned that the
underlying judgment might not be collectable, should the attorney be able
to rely on collectability to escape liability for malpractice?112
D. Damages and Attorney’s Fees
Scholars have argued that the treatment of damages, the final element of
a negligence claim, in the context of legal malpractice claims also reflects a
bias in favor of the legal profession.113 As with other tort claims, legal
malpractice plaintiffs must establish compensatory damages with
reasonable certainty. What is different about legal malpractice cases is that
certain types of damages are not available in these cases. Most notably,
emotional distress damages generally are not recoverable in legal
malpractice cases.114 “Although the clients who have been victimized by
negligent counsel may have lost their homes, the custody of their children,
their freedom, or their life’s savings, in most jurisdictions, lawyers are
immune from the common obligation to compensate for the emotional harm
that they have caused.”115
Finally, the rules on recovery of attorney’s fees work to the disadvantage
of legal malpractice plaintiffs. Generally speaking, plaintiffs will not be
able to successfully recover the attorney’s fees associated with bringing the
malpractice case. Specifically, in jurisdictions whose courts have taken the
position that a legal malpractice claim sounds in tort, rather than contract, it
will be difficult for a plaintiff to recover attorney’s fees incurred in pursuing
claims against the lawyer-defendant, even if the state allows for recovery of
attorney’s fees for breach of contract cases.
E. Affirmative Defenses
Assuming that a plaintiff successfully overcomes these obstacles and
establishes the elements of the malpractice claim, the plaintiff must still
deal with affirmative defenses, many of which favor defendants. With
these affirmative defenses, a defendant can escape liability by establishing
an independent reason why the plaintiff should not recover.116 Although an
exhaustive discussion of affirmative defenses is outside the scope of this
Article, the following discussion outlines how certain defenses sweep
broadly, shielding lawyer-tortfeasors.
An affirmative defense can be based on arbitration provisions in a
retainer agreement.117 Over the last two decades, lawyers have increasingly
included arbitration provisions in their client agreements.118 They feel
more confident in doing so because a number of court and ethics opinions
have condoned the use of binding arbitration provisions by attorneys.119
Although a few courts have declined to enforce the provisions, the majority
has enforced them, forcing clients to arbitrate fee disputes as well as legal
malpractice claims.120 Ethics opinions have also given lawyers a green
light to force aggrieved clients into arbitration, provided that the retainer
agreement meets certain conditions, such as disclosure of the advantages
and disadvantages of arbitration.121
From the standpoint of an aggrieved client, arbitration means that the
client relinquishes the protections afforded by an open-court process,
including right to discovery and appellate review.122 Most importantly, the
clients forfeit their right to a jury trial before their peers.123 Even in
jurisdictions that require that lawyers disclose the consequences of a
prospective client agreeing to an arbitration provision, query whether most
clients will object to the provisions. In particular, prospective clients of
modest means may agree to those provisions, effectively forfeiting their
access to courts when they want to pursue a legal malpractice claim.
Clients may only fully appreciate the effect of the arbitration provision
when they unsuccessfully attempt to hire a plaintiffs’ attorney who declines
representation due to the arbitration provision.124
Other affirmative defenses involve assignability and immunity. Due to
public policy concerns, the majority of jurisdictions treat legal malpractice
claims as not assignable; thus, the lawyer-defendant might be able to
summarily defeat a plaintiff who has been assigned a legal malpractice
claim.125 Moreover, depending on the jurisdiction, the lawyer-defendant
may be able to rely on the broad litigation privilege applicable to statements
made in lawsuits126 and the immunity available to certain groups of
lawyers, such as public defenders.127
Even for plaintiffs who successfully get to the courthouse, other
affirmative defenses can bar recovery. One relates to the unlawful conduct
of the plaintiffs. As explained above, the unlawful conduct of the plaintiff
may prevent the plaintiff from proving causation as part of the plaintiff’s
prima facie case.128 In other jurisdictions, the defendant may assert the
affirmative defense of in pari delicto or rely on the unlawful conduct or
unclean hands doctrines.129 Rather than allowing lawyer-defendants to
escape liability by relying on in pari delicto or the unclean hands doctrine,
Professor Vincent Johnson suggests that courts use a more equitable
approach when a defendant asserts contributory negligence, comparative
negligence, or comparative fault as an affirmative defense.130
III. CHALLENGES IN OBTAINING RECOVERY
When malpractice plaintiffs overcome the hurdles discussed above and
obtain judgments, they still may not be able to collect the judgment. Unless
the lawyer carries insurance or possesses adequate nonexempt assets to
cover the liability, the plaintiff may be left with an uncollectible judgment.
This part briefly considers why uncollectability poses a serious risk for
The risk boils down to the fact that only one state in the United States—
Oregon—requires professional liability insurance for lawyers.131 Unlike
other countries, such as Canada and Australia, which require that lawyers
maintain at least the minimum limits of liability, lawyers in the United
States are largely free to practice without insurance.132
Although the precise percentage of uninsured lawyers is not known, the
likelihood of being represented by an uninsured lawyer is significant.133
This is especially true for clients represented by solo and small firm
practitioners.134 According to data reported in the 2016 registration process
129. See Johnson, supra note 88, at 63–75.
130. Id. at 82. Among the “state appellate courts that have dealt with this issue in some
fashion, the overwhelming majority have recognized that a client’s recovery for legal
malpractice can be either entirely foreclosed, or proportionally diminished, as the result of
his or her own negligence.” Gorski v. Smith, 812 A.2d 683, 698 (Pa. Super. Ct. 2002). For a
discussion of the availability of contributory and comparative fault principles in defending
legal malpractice cases, see Meyer & Eberspacher, supra note 6.
131. See Leslie C. Levin, Lawyers Going Bare and Clients Going Blind, 68 FLA. L. REV.
(forthcoming 2017) (manuscript at 3), https://papers.ssrn.com/sol3/papers.cfm?abstract_
132. For a discussion of how the United States differs from other countries in not
requiring insurance, see Susan Saab Fortney, Law as a Profession: Examining the Role of
Accountability, 40 FORDHAM URB. L.J. 177, 188–93 (2012). Depending on the practice
circumstances, lawyers may opt to carry insurance as a condition to obtaining certain
protections or benefits. For example, some bar associations require that lawyers carry
minimum limits of liability to obtain referrals from the association’s referral network. See,
e.g., Find a Lawyer Referral Services (LRS), ST. B. CAL., http://www.calbar.ca.gov/Public/
LawyerReferralServicesLRS.aspx (last visited Mar. 2
133. Fortney, supra note 132, at 199 (referring to surveys that suggest that the
percentages of uninsured attorneys range from 17 percent to 48 percent).
134. See Levin, supra note 131 (manuscript at 1 n.1) (citing survey findings indicating
that 63 percent of Texas solo practitioners were uninsured and 62 percent of Utah solo
practitioners were uninsured).
in Illinois, 41.1 percent of solo lawyers did not carry malpractice
Lawyers in the United States do not carry insurance for a variety of
reasons. First, lawyers commonly report that they do not carry insurance,
because of its cost or their inability to afford it.136 Other lawyers in private
practice may not carry insurance because they practice on a part-time basis
or practice with little or no profit.137 Interestingly, some lawyers, such as
criminal defense lawyers, have admitted that they do not carry insurance,
because they are rarely sued or found liable for malpractice.138 A
perplexing explanation for lawyers “going bare” is that many apparently do
not believe that they have a professional obligation to maintain insurance or
assets to be available in the event of a claim.139 Some of these lawyers may
think that insurance “put[s] a target on [their] backs,” believing that they
may not be sued if they do not carry insurance.140
When lawyers do carry professional liability insurance, another
collectability risk relating to coverage limitations arises. Insurers use
language in their insuring agreements, exclusions, and definitions to limit
coverage. For example, to eliminate coverage for punitive damages, the
insuring agreement may state that the insurer “agrees to pay on behalf of the
Insured all sums in excess of the deductible that the Insured shall become
legally obligated to pay as damages.”141 One must read the definitions to
learn that “damages” does not include “punitive or exemplary amounts.”142
Common coverage exclusions eliminate coverage for fraud, intentional
acts, and business transactions with clients.143 Over the last twenty years,
insurers have added new exclusions and policy language to limit their
exposure. For example, insurers revised policy language to limit liability
for claims relating to legal services performed when the insured was a
lawyer at a prior law firm.144 Unless the lateral lawyer has insurance under
a prior firm’s policy or the lawyer maintained personal assets to pay a
judgment, an injured person may be left without recovery.
From the standpoint of accountability and financial responsibility,
perhaps the most troubling conduct that impacts malpractice victims is that
some lawyers may intentionally “make their pockets shallow” by sheltering
assets and forgoing insurance.145 Although others in business may resort to
such conduct to minimize their liability exposure, lawyers “who espouse the
status of law as a profession should recognize financial responsibility as a
professional virtue and promote it as such.”146
IV. INITIATIVES TO PROVIDE MORE ACCESS
TO MALPRACTICE VICTIMS
The above survey of challenges faced by malpractice plaintiffs paints an
arduous, but accurate, picture of the journey, starting with hiring a
malpractice lawyer to collecting a judgment. The discussion of the uphill
battle for plaintiffs may help regulators, jurists, and concerned lawyers
better appreciate the unfairness of the status quo and rethink current
approaches. This part identifies changes and initiatives designed to provide
more access to justice for victims of legal malpractice, especially those of
In considering changes, a starting point is to rethink the standards and
procedures used in professional liability cases against lawyers. This
examination requires consideration of rules and legal principles that apply
to elements of a legal malpractice case, including the strict application of a
privity rule in some jurisdictions.147
Another concern relates to the proof of causation and the
trial-within-atrial requirement. Depending on the alleged misconduct, the plaintiff
should not be limited to a “but for” showing. As with medical malpractice
cases in some jurisdictions, plaintiffs should be allowed to rely on the loss
of chance doctrine and on the relaxed “substantial factor” test as permitted
in some breach of fiduciary duty cases. For claims against criminal defense
lawyers, more high courts should join the handful of jurisdictions that
recognize the inequity of requiring a plaintiff to establish actual innocence
or obtain postconviction relief.
Implementing changes related to experts can also provide more access to
malpractice victims, especially those whose claims for damages are less
than six figures. Because expert witness fees make smaller legal
malpractice cases cost prohibitive, judges should carefully consider whether
expert testimony is necessary. Currently, the category of cases in which
expert testimony is unnecessary is very narrow. It is largely limited to
situations when the common knowledge of jurors is extensive enough to
to clarify that a new firm’s policy did not cover claims brought in connection with
professional services rendered at another firm).
145. Levin, supra note 131 (manuscript at 36) (suggesting that “[c]lients will likely feel
doubly aggrieved when the uninsured lawyer shelters assets”).
146. Fortney, supra note 132, at 214.
147. See supra notes 67–68 and accompanying text.
enable them to discern the attorney’s misconduct from the facts.148 In the
interest of allowing more malpractice victims to pursue claims, judges
should scrutinize situations to determine if expert testimony is necessary to
assist the trier of fact. In bench trials, judges may be able to take judicial
notice of standards of care under certain circumstances. In other cases,
judges should not grant summary judgment or directed verdicts on the basis
of no expert testimony. Rather, judges could allow more cases to go
forward without experts, leaving the question of the necessity of an expert
to be evaluated on appeal.
Another alternative to the expensive battle of experts is for parties to
mutually agree to share the same expert. Occasionally, malpractice insurers
suggest this approach in situations such as ones where the parties recognize
that the liability question turns on the reasonableness of the defendant’s
A related move would be for the court to appoint experts under the
authority of Federal Rule of Evidence 706 or state versions of that rule.149
The use of court-appointed experts changes the economics of a case
because courts may obligate parties to split the expert fees and expenses.150
Costs associated with the legal malpractice cases might also be cut if
courts provided more latitude to experts. For example, allowing more
experts to testify on the basis of hypothetical scenarios could reduce the
amount of time that experts must devote to preparing for depositions and
On the issue of causation, some jurisdictions shift the burden of proof to
the lawyer-defendant.151 More courts should be willing to shift the burden
in situations such as ones where the plaintiff will not be able to prove the
merits of underlying claims, because the alleged malpractice related to the
failure of the defendant to discover evidence.152
In addition to shifting burdens and cutting costs, the attractiveness of a
legal malpractice claim would also be impacted if courts changed rules
currently applied to damages and attorney’s fees. Specifically, courts
148. See FORTNEY & JOHNSON, supra note 3, at 77.
149. See FED. R. EVID. 706(a) (“On a party’s motion or on its own, the court may order
the parties to show cause why expert witnesses should not be appointed and may ask the
parties to submit nominations. The court may appoint any expert that the parties agree on
and any of its own choosing. But the court may only appoint someone who consents to
150. In most civil cases, the compensation is payable “by the parties in the proportion and
at the time that the court directs—and the compensation is then charged like other costs.” Id.
151. See Boysen, supra note 108, at 311 (referring to a “significant minority of
jurisdictions [that] allow the burden to shift to the defendant after the plaintiff presents a
prima facie case of negligence”).
152. See F. Parks Brown, Case Note, Evidentiary Standards in the Legal Malpractice
Trial-Within-a-Trial, 3 ST. MARY’S LEGAL MALPRACTICE & ETHICS 320, 326–27 (2013)
(“The justification for shifting the burden of proof on causation to the attorney, requiring the
attorney prove his negligence was not the proximate cause of the plaintiff’s injury, is based
upon the superior position that the defendant-attorney occupies in relation to his former
client who has now brought charges against him.”).
should be more willing to allow plaintiffs to recover emotional distress
damages. In addition, courts could allow more use of fee forfeiture as a
remedy. Beyond providing compensation to the individual plaintiff,
recognition of different types of damages and equitable remedies
“stimulates others to seek legal remedies for their injuries.”153
Regulators and bar associations could also take steps to improve the
likelihood of a plaintiff being able to collect judgments. Progressive
jurisdictions could join Oregon and countries around the world in requiring
malpractice insurance for attorneys in private practice. Short of requiring
insurance or requiring lawyers to demonstrate that they have sufficient
nonexempt assets to pay malpractice judgments, states should require
lawyers to disclose directly to clients the fact that the lawyer does not
maintain insurance.154 Data suggest that rigorous disclosure requirements
may help reduce the number of uninsured lawyers.155
For those situations where lawyers have engaged in serious misconduct
that is not covered by malpractice insurance, injured persons should be able
to submit claims to the state’s client protection funds.156 Where possible,
bar associations and state supreme courts should evaluate the conditions
and caps set forth in program guidelines.
Even with these changes, pursuing a legal malpractice claim through the
courts may not be feasible for many consumers with relatively small claims
for damages. In situations where the alleged misconduct violates state
disciplinary rules, the disciplinary system may be able to provide a forum
for resolving disputes. Although disciplinary authorities in the United
States may order restitution in limited circumstances, regulators abroad are
using approaches to provide more redress to consumers. For example, a
new regulatory scheme in Victoria, Australia, empowers the legal services
commissioner to order compensation up to $25,000 to resolve consumer
complaints, such as ones involving losses because of poor service.157 In
England and Wales, a legal ombudsman functions as an independent body
charged with resolving disputes between lawyers and solicitors.158
Interestingly, the legal ombudsman follows a process that includes features
of mediation and arbitration. First, the legal ombudsman attempts to
resolve informally the dispute between the consumer and the solicitor.159 If
the parties cannot resolve the dispute, the disagreement goes back to the
legal ombudsman for a decision.160 When the legal ombudsman finds in
favor of a complainant, the ombudsman can require the solicitor to pay up
to £50,000, although the average compensation award is under £250.161
Progressive courts, regulators, and bar associations in the United States
should study the Australian and U.K. experiences to determine if features of
their systems could be adapted to resolve disputes and provide redress to
In 1976, a federal judge wrote: “The time has come for lawyers to be
responsible for their mistakes and their lack of attention to their
professional responsibilities.”162 Forty years later, it is time to reexamine
whether our civil liability regime provides meaningful remedies to
numerous consumers injured by attorney misconduct. Jurists and other
decision makers who recognize the full scope of challenges faced by
malpractice plaintiffs should be less inclined to extend additional
protections to attorneys and may even support changes that better balance
the interests of lawyers and those they injure. Most importantly, lawyers
who advocate access to justice and professionalism should be the first to
support developments that provide avenues for holding lawyers accountable
for their professional misdeeds.
161. Decisions made by the legal ombudsman are subject to judicial review. Id.
162. Brown v. E.W. Bliss Co., 72 F.R.D. 198, 200 (D. Md. 1976).
4. John Leubsdorf, Legal Malpractice and Professional Responsibility, 48 RUTGERS L. REV . 101 , 105 ( 1995 ).
5. See, e.g., Howard Altschuler , Legal Malpractice Litigation: Some of What You Need to Know BEFORE You Decide Whether to Sue Your Lawyer , LEGAL MALPRACTICE L. CTR. (July 31 , 2013 ), http://legal-malpractice. com/legal-malpractice-litigation-some-of-what-youneed-to-know-before-you-decide-whether-to-sue-your-lawyer/ [https://perma.cc/VVM2- 3V4T] ; What Are the Typical Hurdles in a Legal Malpractice Case? , NOWAK & STAUCH, http://www.ns-law.net/Practice-Areas/Legal-Malpractice/ What-are-the-typical-hurdles-in-alegal-malpractice-case.shtml (last visited Mar . 25 , 2017 ) [https://perma.cc/26TE-NBNL].
6. See Daniel B. Meyer & Edward C. Eberspacher , My Negligence? : What About Yours?: Legal Malpractice and a Client's Comparative Fault, FOR DEF ., Oct. 2007 , at 18. See generally Michael P. Cross & Nicole M. Quintana , Your Place or Mine?: The Burden of Proving Collectability of an Underlying Judgment in a Legal Malpractice Action , 91 DENV. U. L. REV. 53 ( 2014 ).
7. Lawrence W. Kessler , The Unchanging Face of Legal Malpractice: How the “Captured” Regulators of the Bar Protect Attorneys , 86 MARQ. L. REV. 457 , 457 - 58 ( 2002 ). “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 .” Id. at 458.
8. Id. at 466.
9. Id. at 457.
23. Benjamin P. Cooper , The Lawyer's Duty to Inform His Client of His Own Malpractice, 61 BAYLOR L . REV. 174 , 182 - 88 ( 2009 ) ; see also MODEL RULES OF PROF'L CONDUCT rr . 1 . 4 , 1 .7 ( AM. BAR ASS'N 2016).
24. Cooper , supra note 23, at 182.
25. Benjamin P. Cooper , When Clients Sue Their Lawyers for Failing to Report Their Own Malpractice , 44 HOFSTRA L. REV. 441 , 448 - 49 ( 2015 ).
26. See id. at 448 (noting that there have been “surprisingly few reported cases in which a client has attempted to assert a separate claim against the lawyer based on the lawyer's failure to report his own malpractice”).
27. See id. at 470 (arguing that clients should be able to assert an independent claim for breach of fiduciary duty and seek equitable remedies such as fee forfeiture).
28. For the seminal article that advocates for the recognition of a broad privilege, see Elizabeth Chambliss, The Scope of In-Firm Privilege, 80 NOTRE DAME L . REV. 1721 ( 2005 ).
29. See Susan Saab Fortney, Are Law Firm Partners Islands unto Themselves?: An Empirical Study of Law Firm Peer Review and Culture, 10 GEO . J. LEGAL ETHICS , 271 , 297 - 300 ( 1996 ) (analyzing the first cases that extended the privilege to some communications but limited the protection with respect to communications involving current clients).
30. Tort Trial & Ins. Practice Section , Am. Bar Ass'n, Report to the House of Delegates: Resolution 103 , in AMERICAN BAR ASSOCIATION 2013 ANNUAL MEETING: RESOLUTIONS WITH REPORTS TO THE HOUSE OF DELEGATES 133 ( 2013 ), http://www.americanbar.org/ content/dam/aba/administrative/house_of_delegates/ 2013 __hod_annual_resolutionswithrepo
36. FORTNEY & JOHNSON, supra note 3, at 10; see Gary N. Schumann & Scott H. Herlihy , The Impending Wave of Legal Malpractice Litigation: Predictions, Analysis, and Proposals for Change, 30 ST . MARY'S L.J . 143 , 176 - 77 ( 1998 ) (noting that lawyers' reluctance to sue one another “was much greater fifty or even twenty-five years ago”).
37. John Bradford, OXFORD DICTIONARY OF QUOTATIONS (Elizabeth Knowles ed., 5th ed. 1999 ).
38. Tips on Suing Your Lawyer for Malpractice , MAKAREM & ASSOCS. (Feb. 28 , 2015 ), http://www.makaremlaw.com/tips-suing - lawyer-malpractice/ [https://perma.cc/PAT8- 8WSC].
39. Suing an Attorney for Malpractice Is Harder Than You Think, I DO NOT WANT TO BE YOUR LAW . (Aug. 26 , 2013 ), http://www.idonotwanttobeyourlawyer. com/suing-anattorney-for-malpractice-is-harder-than-you-think/ [https://perma.cc/328U-TP64].
40. One law firm that only handles legal malpractice claims resulting from personal injury cases notes that the firm will have to determine that the underlying case had “significant value” before deciding to take it on . Legal Malpractice , LAW FIRM REED & MANSFIELD , http://www.accidentawardslasvegas.com/additional-services/legal-malpracticelawyers / (last visited Mar . 25 , 2017 ) [https://perma.cc/U7BT-SW44].
41. In a book written for lay people, one malpractice expert dissuaded clients from agreeing to pay attorneys on an hourly basis unless clients believe that they “have an outstanding case with a potential recovery in the millions and [the clients] have substantial financial resources . ” BOYD S. LEMON, EVALUATING A MALPRACTICE CASE AGAINST A LAWYER 23 ( 2006 ).
42. Suing an Attorney for Malpractice Is Harder Than You Think , supra note 39.
52. Neil J. Dilloff & Albert S. Barr III , Legal Malpractice : The Plaintiff's Perspective, 18 MD. B.J. 6 , 8 ( 1983 ).
53. Roy Ryden Anderson & Walter W. Steele , Jr., Fiduciary Duty , Tort and Contract: A Primer on the Legal Malpractice Puzzle, 45 SMU L . REV. 235 , 235 ( 1994 ).
54. See FORTNEY & JOHNSON, supra note 3, at 19 ( explaining that “legal malpractice” traditionally referred to professional negligence claims against lawyers).
55. See id. (“Over the years, courts and commentators have taken a more expansive view of legal malpractice, using the term to refer to various claims against lawyers .”).
56. See Cooper, supra note 25 , at 457-58 ( referring to the “incoherent doctrine” related to breach of fiduciary duty and negligence claims).
57. See id. at 458.
58. No. 05 -14-01151-CV, 2016 WL 1162208 ( Tex . App. Mar. 24 , 2016 ).
59. Id . at *3; see Jess Krochtengel , Baker Botts Dodges $41M Verdict in IP Malpractice Trial , LAW360 (May 15 , 2014 , 12 :51 PM), http://www.law360.com/articles/537619/bakerbotts-dodges - 41m -verdict-in-ip-malpractice-trial [https://perma .cc/4H4B-85EE].
60. Axcess Int'l , 2016 WL 1162208, at *1; see Krochtengel, supra note 59.
61. See Krochtengel, supra note 59.
62. Axcess Int'l , 2016 WL 1162208, at *1.
63. Id .
64. See FORTNEY & JOHNSON, supra note 3, at 45.
65. Compare Kessler, supra note 7 , at 457 ( asserting that the “legal malpractice tort, alone, retains defendant protections that have been denied to others,” such as defendants in medical malpractice and products liability cases), with Barton , supra note 12 , at 491 (“ It is much harder to prove legal malpractice than medical malpractice . . . because the legal profession has enjoyed several unique advantages as defendants in malpractice actions, and doctrinal changes that have applied in medical malpractice have been barred or adopted much more slowly in legal malpractice [actions] .”).
66. See FORTNEY & JOHNSON, supra note 3, at 34-35, 47 - 52 ( discussing how the plaintiff's relationship with the attorney-defendant affects standing and the ability to pursue different types of claims).
67. Id . at 180.
68. See Tom W. Bell, Limits on the Privity and Assignment of Legal Malpractice Claims , 59 U. CHI. L. REV . 1533 , 1535 - 36 ( 1992 ).
69. See Barton, supra note 12 , at 498.
70. E.g., ARK . CODE ANN. § 16 - 22 - 310 ( 2016 ) (stating that licensed attorneys shall not be liable to persons not in privity, subject to limited exceptions).
71. See supra note 46 and accompanying text .
72. See supra note 49 and accompanying text .
73. With negligence per se, the unexcused violation of a standard-setting legislative enactment is conclusive proof of breach of duty. See FOWLER V. HARPER ET AL., HARPER , JAMES AND GRAY ON TORTS § 17.6 (3d ed. 2007 ).
74. MODEL RULES OF PROF'L CONDUCT pmbl . (AM. BAR ASS'N 2016 ) (noting that a violation of a rule “should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached”).
75. See Gary A. Munneke & Anthony E. Davis , The Standard of Care in Legal Malpractice: Do the Model Rules of Professional Conduct Define It ?, 22 J. LEGAL PROF . 33 , 82 - 83 ( 1998 ) (arguing that violations of the ethics rules should raise an inference of negligence, rather than a presumption of negligence or negligence per se).
76. Although a minority of courts have found that an ethical violation creates a rebuttable presumption of legal malpractice, the majority uses the approach reflected in the Restatement of the Law Governing Lawyers, which treats violations of ethics rules as evidence of professional misconduct . See FORTNEY & JOHNSON, supra note 3 , at 36-37.
77. See id. at 101-02.
78. See id. at 102-03 ( suggesting that a defendant may be able to escape liability by convincing the trier of fact that the plaintiff's harm was caused by something other than the defendant's negligence) .
79. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 53 cmt. b (AM . LAW INST . 2000 ).
80. Joseph H. Koffler , Legal Malpractice Damages in a Trial Within a Trial: A Critical Analysis of Unique Concepts: Areas of Unconscionability, 73 MARQ . L. REV. 40 , 41 ( 1989 ).
81. Michael L. O'Donell & Christopher P. Montville , New Strategies for Defending Professional Liability Claims, in BEST PRACTICES FOR ADDRESSING PROFESSIONAL LIABILITY CLAIMS 35 , 41 ( 2015 ).
82. See id. at 42 & n.11.
83. See Muhammad v. Strassburger , 587 A.2d 1346 , 1348 (Pa. 1991 ). In resolving the case in light of the “longstanding public policy” that encourages settlements, the
108. See id. at 1569; see also Jeffrie D. Boysen, Comment, Shifting the Burden of Proof on Causation in Legal Malpractice Actions, 1 ST . MARY'S J. LEGAL MALPRACTICE & ETHICS 308 , 329 ( 2011 ).
109. See FORTNEY & JOHNSON, supra note 3, at 104-05.
110. Daniel L. Abrams, When Case-Within-a-Case Method Helps Plaintiffs Prove Legal Malpractice , N.Y. LEGAL ETHICS REP. (May 1 , 2015 ), http://www.newyorklegalethics. com/ when-case-within-a-case-method-helps-plaintiffs-prove-legal-malpractice/ (suggesting that legal malpractice litigators must carefully consider their clients' positions in a trial within a trial) [https://perma .cc/55NA-ZRYP].
111. See Barton, supra note 12 , at 492. Some jurisdictions treat the issues of collectability of a judgment as “a matter constituting avoidance or mitigation of damages,” an issue that must be “pleaded and proved by the defendant as an affirmative defense . ” FORTNEY & JOHNSON, supra note 3 , at 113.
112. See Barton, supra note 12 , at 497 ( arguing that the burden of proof on causation should be shifted to the defendant before the lawyer-defendant “accepted the employment and pursued the [underlying] case before it was allegedly lost through her incompetence”).
113. See , e.g., Kessler, supra note 7 , at 477-91.
114. See RONALD E. MALLEN & JEFFREY M. SMITH , LEGAL MALPRACTICE § 20 .11 (5th ed. 2000 ) (“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 .”).
115. Kessler , supra note 7, at 478. Professor Kessler argues that the following justifications for disallowing emotional distress damages are not persuasive: pain and suffering is not foreseeable, emotional harm is speculative, and limiting damages for emotional harm is not necessary “to insure representation for all .” Id. at 477-91.
116. See generally Rain Levy Minns-Fink, Insuring a Civil Confession in Texas: Strategies for Alleging and Challenging Affirmative Defenses, 37 ADVOCATE 57 ( 2006 ). For an overview of the most important affirmative defenses asserted by legal malpractice defendants , see FORTNEY & JOHNSON, supra note 3 , at 291-357.
117. See FORTNEY & JOHNSON, supra note 3, at 354.
118. See Ashley Carleton , An Ethics Analysis of Arbitrating Malpractice Claims, 27 J. AM. ACAD. MATRIM . L. 445 , 445 ( 2015 ).
119. Id . at 446-47.
120. See id. at 446 , 456 - 60 ( surveying the “change in tide” to accept arbitration provisions).
121. For a survey of ABA and state ethics opinions, see Chrissy L. Schwennsen, Arbitration Clauses in Fee Retainer Agreements, 3 ST . MARY'S J. LEGAL MALPRACTICE & ETHICS 330 , 341 - 43 ( 2013 ).
122. See Mark R. Trachtenbert & Christina F. Crozier , Risky Business: Altering the Scope of Judicial Review of Arbitration Awards by Contract, 69 TEX . B.J. 868 , 868 ( 2006 ) (“Judicial review of an arbitration award is 'extremely narrow' and focuses on the integrity of the arbitration process, rather than the propriety of the result .”).
123. See FORTNEY & JOHNSON, supra note 3, at 354.
124. Unless the jurisdiction has addressed the enforceability of predispute arbitration provisions in attorney-client retainer agreements, a plaintiffs' attorney may be unwilling to file suit and face the motion to compel arbitration.
125. See Kevin Pennell, Note, On the Assignment of Legal Malpractice Claims: A Contractual Solution to a Contractual Problem, 82 TEX . L. REV. 481 , 481 - 82 ( 2003 ).
126. See Louise Lark Hill , The Litigation Privilege: Its Place in Contemporary Jurisprudence , 44 HOFSTRA L. REV. 401 , 403 ( 2015 ) (explaining that some jurisdictions treat the litigation privilege as an affirmative defense and others as an immunity from civil action).
127. “ Many states have granted public defenders qualified immunity from suit for acts or omissions made in the course of 'executing their official duties,' regardless of whether the attorney had been found ineffective .” Joseph H. Ricks , Raising the Bar: Establishing an Effective Remedy Against Ineffective Counsel, 2015 BYU L . REV. 1115 , 1123 .
128. See supra note 88 and accompanying text .
135. Email from James J. Grogan , Deputy Adm'r & Chief Counsel, Att'y Registration & Disciplinary Comm'n of the Supreme Court of Ill ., to author (Sept. 27 , 2016 ) ( on file with the Fordham Law Review) .
136. See Levin, supra note 131 (manuscript at 9-11) (referring to survey results in which uninsured lawyers in three states frequently cited “cost” and unaffordability as reasons for not carrying insurance). In the three states, the annual premium for minimum levels of coverage runs about $3,000 per lawyer . Id. at 9.
137. Id . at 10 , 12 .
138. Id . at 13 (indicating that 43 percent of New Mexico lawyers indicated their practice areas did not expose them personally to malpractice liability).
139. See Fortney, supra note 132 , at 206-09 ( analyzing hearing testimony and written comments submitted in connection with the Texas debate over requiring attorneys to disclose whether they carried insurance).
140. Id . at 207 n.167.
141. Sample CNA Lawyers' Professional Liability Insurance Policy , N.Y. ST. B. INS . PROGRAM WITH USI AFFINITY 1 , http://www.mybarinsurance.com/Content/Downloadables/ CNA_Sample_Policy. pdf (last visited Mar . 25 , 2017 ) [https://perma.cc/Q89M-HRXZ].
142. Id . at 4-5.
143. For an overview of common exclusions, see RONALD E. MALLEN, LEGAL MALPRACTICE: THE LAW OFFICE GUIDE TO PURCHASING LEGAL MALPRACTICE ( 2016 ).
144. See Susan Saab Fortney , Insurance Issues Related to Lateral Hire Musical Chairs, 2000 J. PROF . LAW. (SYMP . ISSUE) 65 , 67 - 68 ( noting that insurers tightened policy language
153. Kessler , supra note 7, at 461.
154. See Levin, supra note 131 (manuscript at 48-50) (proposing written disclosure rules that provide meaningful information to the public before a client decides to retain the attorney ).
155. See id. at 24.
156. See Benjamin Hoorn Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justification for Entry and Conduct Regulation, 33 ARIZ . ST. L.J., 429 , 473 n. 199 ( 2001 ) (referring to the limitations and conditions for payment) .
157. Legal Profession Uniform Law Application Act 2014 (Vict.) s 308 (Austl .).
158. Legal Services Act 2007 , c. 29 , § 114 (UK). The regulatory objectives of the Legal Services Act include “improving access to justice .” Id. § 1.
159. See FAQs : How We Resolve Complaints, LEGAL OMBUDSMAN, http:// www.legalombudsman.org.uk/faqs/ (last visited Mar. 25 , 2017 ) [https://perma.cc/G4RV6ZBG].