1 WHAT GOES AROUND COMES AROUND: LAWSUITS AGAINST LAWYERS AND THE PROFESSIONAL RESPONSIBILITY OF LAW SCHOOLS TO FACE THAT REALITY Katerina P. Lewinbuk* INTRODUCTION This Article argues that law schools should not ignore the legal malpractice and grievance issues because it is their job to prepare students for pitfalls in the profession. Law schools rarely provide instruction about the grievance process or the possibility of clients suing their lawyers. Most schools ignore it altogether, perhaps wanting to avoid discussing the negative side of practicing law with impressionable students. However, law schools should recognize this gap in their curricula and equip graduates to protect and defend themselves from their own clients and third parties. This Article discusses specific examples of curriculum design and courses in this area that allow law students to better prepare for and possibly prevent liability from claims by clients and third parties. Law school faculty should build on existing curriculum to develop more courses, including clinics, practical training, and skills-focused simulation courses. Even without the addition of new courses, however, professional responsibility courses are adaptable to this approach. The legal profession and legal academia should stop harboring a taboo regarding legal malpractice and grievance conversations and, instead, focus on the * Professor of Law, South Texas College of Law, Houston, Texas. This Article, along with all of my academic work, is dedicated to the precious memory of my father, Dr. Vladimir Z. Parton, who will always remain my inspiration. Special thanks go to my husband Dan, my children Alexandra and Michael, and to my mother for their endless love and support. I also would like to express my appreciation to my very talented and hard-working research assistants Allison Henderson and Sarai Sanchez for their assistance in preparation of this article. In addition, I would like to thank the Southwestern Law Review for their editorial efforts. 547
2 548 SOUTHWESTERN LAW REVIEW [Vol. 42 education and skills its lawyers need most, in order to be well-prepared to face the current and upcoming challenges of the practice of law. I. LEGAL MALPRACTICE AS THE TORT OF THE NEW MILLENNIUM 1 A. Lawsuits Against Lawyers Americans have a reputation for being members of a litigious society; our well-established thinking pattern is that someone is always at fault. 2 Much is made of the fact that Americans are...happy to sue at the drop of a hat. 3 In fact, one study showed that there were 3.3 lawsuits filed each year for every 1,000 [Americans]. 4 The overwhelming prevalence of lawsuits, among other factors not discussed herein, has contributed to general distrust and an overall negative image of lawyers in America. 5 More specifically, the public perception that lawyers promote and profit from the growing number of lawsuits has led to the view that lawyers are greedy and benefit from the unfortunate circumstances of their clients. 6 To 1. Bennett J. Wasserman, Teaching Tomorrow s Lawyers to Avoid Legal Malpractice, LEGAL MALPRACTICE L. REV., App. A, (Apr. 15, 2010), uploads/file/033(4).pdf. 2. David Z. Webster, At Issue: Mandatory Malpractice Insurance; Yes: It s Essential to Public Trust, 79 A.B.A. J. 44, Nov. 1993, at 44 ( The foundation of the U.S. legal system is adversarial. Indeed, it is one of the most litigious legal systems in the world. ). 3. Jennifer King, America the Litigious, Lawyers.com, (July 13, 2010), A number of scholars argue against the adversarial legal system, advocating instead for the lawyer s role to become more advisory, and promoting collaborative law. See, e.g., Jennifer Knauth, Legal Malpractice: When the Legal System Turns on the Lawyer, 35 ST. MARY S L.J. 963, (2004) ( [T]his alternative to the adversary system addresses some of the root causes of dissatisfaction with lawyers and the legal system that often lead to legal malpractice claims. ). 4. King, supra note 3. In contrast, only 1.2 lawsuits are filed annually in the United Kingdom for every 1,000 citizens. Id. 5. See, e.g., Katerina P. Lewinbuk, Can Successful Lawyers Think in Different Languages?: Incorporating Critical Strategies That Support Learning Lawyering Skills for the Practice of Law in a Global Environment, 7 RICH. J. GLOBAL L. & BUS. 1, 4 (2008) ( It is sometimes difficult for American lawyers to preserve their image since they are frequently accused of breaking the professional oath and are commonly compared to used-car salesmen. (footnote omitted)); Stuart Taylor Jr., Legal Affairs-Tobacco Lawyers and the Case for Cover-up Reform, NAT L J. (Mar. 25, 2011, 1:29 PM), ( What s unique about the legal profession is that lawyers have enshrined in their own codes of professional ethics, and in the attorney-client privilege, rationales for helping clients conceal, distort, obfuscate, and misrepresent important facts. ); Mark Friendshuh, Ethics by Fiat: An Occasionally Irrelevant Interpretation of the Attorney Conduct Provisions of the Sarbanes-Oxley Act, ADVOC., June 2003, at 19 (noting the ethical failures of lawyers and other professionals in the wake of Enron). 6. Gary N. Schumann & Scott B. Herlihy, The Impending Wave of Legal Malpractice Litigation Predictions, Analysis, and Proposals for Change, 30 ST. MARY S L.J. 143, 144 (1998)
3 2013] WHAT GOES AROUND COMES AROUND 549 that end, clients (and even non-clients, i.e., third parties) are moving toward giving the lawyers a taste of their own medicine and are now frequently suing the lawyers themselves. Today, more and more clients see their lawyer[s] as just another deep pocket. 7 Frustrated by exorbitant billing rates and impersonal relations, clients are suing solo practitioners and corporate law firms alike over every aspect of a lawsuit s lifecycle, from disappointing settlements to unsatisfactory appeals. 8 On a practical level, a client who is unhappy with the outcome of his case 9 has two major options by which he may seek recourse: he can either sue his attorney for legal malpractice in a court of law, or file a grievance claim against his attorney with the licensing board where that attorney is registered. 10 Claimants utilize both tracks, filing numerous complaints against lawyers every day. In fact, legal malpractice cases cost insurers more than four billion dollars nationwide, a number that exceeds the cost of medical malpractice litigation to insurers. 11 ( Historically, popular culture has viewed attorneys and the legal profession in antithetical terms at times with scorn and disdain and at other times with reverence and admiration. Although many people subscribe to the stereotype of attorneys as greedy and all too willing to warp the truth, people also tend to view attorneys they know personally with respect and admiration. ). 7. Manuel R. Ramos, Legal Law School Malpractice: Confessions of A Lawyer s Lawyer and Law Professor, 57 OHIO ST. L.J. 863, 929 (1996) [hereinafter Confessions]. A disturbing pattern has emerged. The statistical information suggests a greater willingness of disappointed clients to second-guess their lawyer s performance. Accordingly, the public has become even more critical of lawyers performance. Introduction, 50 BAYLOR L. REV. 547, 548 (1998). 8. Confessions, supra note 7, at Debra A. Saunders & Richard S. Humphrey, The Thickening Briar Patch of Legal Malpractice, 46 R.I. BAR J. 9, 9 (1998) ( In any attorney-client relationship there is always the chance that the client will be unhappy with the outcome, which may give rise to a legal malpractice claim.... [D]espite the lawyer s best efforts, if the client s case is lost, the client may feel like a victim twice-wronged. A claim for legal malpractice may be viewed by the client as his last chance at vindication. ); Nick Hedding, The Fine Line Between Strategic Miscalculation and Harmful Error: Consequences and Repercussions of Legal Malpractice to the Criminal Defense Attorney, 4 J. LEGAL ADVOC. & PRAC. 222, 222 (2002) ( Hindsight is twenty/twenty, but it seems that attorneys are often expected to flawlessly predict how best to approach [a case].... A lawyer, unlike other professionals, is not given a second chance to correct litigation errors once a judgment is rendered. While a contractor who erects a building to the wrong specifications has the ability to correct his error in order to please the client and avoid a lawsuit, [an] attorney is not afforded this same professional leeway.... ). 10. Manuel R. Ramos, Legal Malpractice: No Lawyer or Client Is Safe, 47 FLA. L. REV. 1, (1995) [hereinafter No Lawyer or Client is Safe] ( [L]awyers cannot prevent a client, or non-client, from initiating a claim, even a frivolous one, against their insurance carriers. Are these claims merely another form of lawyer bashing caused by lawyers plummeting prestige? ). 11. Manuel R. Ramos, Legal Malpractice: Reforming Lawyers and Law Professors, 70 TUL. L. REV. 2583, 2583 (1996) [hereinafter Reforming Lawyers and Law Professors] ( Each year legal malpractice costs insurers nationwide more than $4 billion more than medical malpractice, almost as much as what plaintiffs collect annually after exorbitant jury awards, and many times
4 550 SOUTHWESTERN LAW REVIEW [Vol. 42 In reality, statistics show that on average, an attorney is subject to three malpractice claims in her career. 12 While the actual number of malpractice claims filed is difficult to ascertain because most liability insurers do not publish this data, 13 reports indicate that the number of claims has leveled off in recent years. 14 Statistical studies attempt to analyze and explain the overall status of currently existing malpractice claims. 15 The most recent study concluded that the number of claims receiving a financial payout more than the annual amount of rarely collected jury punitive damage awards. ); Confessions, supra note 7, at 923 (quoting Manuel R. Ramos, Legal Malpractice: The Profession s Dirty Little Secret, 47 VAND. L. REV. 1657, (1994)) ( [O]ver twenty percent of lawyers in private practice face legal malpractice exposure; almost ninety percent of the lawyers secretly settle; the average settlement ranges from $25,000 to $5,688,888 depending on the type of claim; and lawyers lost before hostile juries ninety percent of the time. ) RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL MALPRACTICE 1:1 (2012 ed.) (citing Ronald E. Mallen, Cutting Through the Malpractice Maze, THE BRIEF, Summer 1986, at 10); see also Gregory Huffman, Creating the Legal Monster: The Expansion and Effect of Legal Malpractice Liability in North Carolina, 18 CAMPBELL L. REV. 121, 122 (1996) ( On average, attorneys can expect three malpractice claims against them during their careers. ) (citing Nancy Byerly Jones, The North Carolina State Bar, LAWYERS MANAGEMENT ASSISTANCE PROGRAM MANAGEMENT MANUAL 54 (1994)); Coyt Randal Johnston & Robert L. Tobey, The Best of Litigation Update 2010: Chapter 11: Legal Malpractice Update, 50 THE ADVOCATE 8 (2010), available at ( Over 15% of the bar has already been named in a malpractice suit and new lawyers can expect at least three claims during their careers. ). In the end, lawyers should see being sued as a part of doing business. Id. 13. Only eleven U.S. members of the National Association of Bar-Related Insurance Companies and seven U.S. commercial insurance companies contributed to the most recent ABA statistical study of malpractice. See ABA Standing Committee on Lawyers Professional Liability, Profile of Legal Malpractice Claims: , at 2 (2008). Current statistics on the number of legal malpractice claims filed each year is largely unavailable as professional liability insurers generally do not publish their data. Saunders & Humphrey, supra note 9, at 9 n.1 (citing 1 MALLEN & SMITH, LEGAL MALPRACTICE, 1:6, at 20 (4th ed. 1996)). 14. Historically, legal malpractice has seen three peaks in the number of claims filed. The first occurred in the middle of the nineteenth century, coinciding with the major efforts to organize the profession, the corresponding formalization of the judicial system and the codification of the common law. MALLEN & SMITH, supra note 12, at 1:6. The second peak occurred during the end of the nineteenth century with the adoption of ethical codes and legislation on attorney fees. Id. The last peak began in the 1960s and continues today. Id. In the 1970s, there were almost as many reported legal malpractice decisions as there were in the previous history of American jurisprudence, and the 1990s alone saw a 155% increase of legal malpractice claims from the previous decade. Id. While in 2009 the number of claims appeared to level off, there has not been a decline in the overall number of claims filed. Id. What was written in 1998 still holds true today, If...the number of legal malpractice claims rises substantially in the next few years, attorneys will have difficulty obtaining professional liability insurance, and the threat of malpractice suits will fundamentally affect the nature of the profession. Schumann & Herlihy, supra note 6, at See ABA Standing Committee on Lawyers Professional Liability, supra note 13, at 6-7 (showing the statistical changes between each of the five key malpractice studies between 1985 and 2007).
5 2013] WHAT GOES AROUND COMES AROUND 551 from either settlement or judgment is consistently increasing as compared to years prior. 16 It further offered varying explanations for the current trend and available statistics 17 and provided a breakdown in terms of the types of law practice that are at greater risk. 18 Based on the current numbers, the question then arises: who is most likely to face malpractice accusations? One scholar provides the following answer: Everyone and anyone [who] commits malpractice. 19 Occasionally, everyone fails to meet established standards as parents, children, spouses, employees, employers, or friends, because [c]arelessness is part of the human condition, particularly in the ever more complex and stressful practice of law. Thus it should be no surprise that all lawyers face a similar and increasing exposure to carelessness and legal malpractice claims. 20 Moreover, those entering the legal profession fresh out of law school are likely to feel yet another economic burden the mounting college and law school debt which accompanies many as they 16. See id. The study analyzed 40,974 reported malpractice claims based on insurance reports. Id. at 13. It did not report claims from the many lawyers without malpractice insurance, so the sample did not cover the entire lawyer population and therefore in depth statistical analysis is impossible. Id. at 3. Additionally, the study s sample underrepresented large firms. Id. at 17. Despite these limitations, however, the study found that [f]ewer claims are being abandoned or are resulting in no payment [in comparison to previous years], and the big losses are getting bigger and more numerous. Id. The study showed a 9.54% decline in the number of claims reported that were abandoned with no payment between 2003 and Id. at Of the specific reasons why lawyers are sued, the most popular reason is not knowing the law or improperly applying it. Id. at 1. This error accounted for 11.51% of all cases studied. Id. Failure to file a document was the second most popular reason, with 6.45% of all cases studied reporting this as the cause of the claim. Id. More generally, 46.61% of all claims concern alleged substantive errors, with 28.63% of claims concerning administrative/filing errors. Id. at Of all claims reported in the study, 70.09% are filed against firms with five or fewer attorneys. Id. at 6. Included in this figure is the 37.24% of all claims against single attorney firms. Id. The empirical evidence now contradicts many of the generally accepted views on who is likely to face a legal malpractice claim. The studies indicate that it is no longer only the urban middle-aged male, a solo practitioner who graduated from a low-rank law school and who handles mostly one-shot personal injury and real estate work, that is the most likely to be sued for legal malpractice. No Lawyer or Client Is Safe, supra note 10, at 9. While personal injury and real estate are certainly responsible for a near majority of all claims filed, 21.56% and 20.05% respectively, family law at 10.33%, trust and probate at 9.68%, and collection and bankruptcy at 7.27% make up a significant portion of the claims filed. ABA Standing Committee on Lawyers Professional Liability, supra note 13, at Ramos, supra note 10, at 60 ( The Florida Malpractice Data... has been able to show, using comparative demographic data on Florida lawyers, that regardless of whether lawyers practice in urban or rural areas; attended the best, the better, or the worst law schools; have high or low Martindale-Hubbell ratings; are listed in the Best Lawyers in America; practice alone or in small or large firms; have just started practicing or are more experienced; have been disciplined or not by the state bar; practice real estate or plaintiff s personal injury work they are all likely to face legal malpractice claims in their career in proportion to their numbers. ). 20. Id. at
6 552 SOUTHWESTERN LAW REVIEW [Vol. 42 begin to practice law. For an unwary lawyer, these increasing burdens can accelerate the potential for malpractice and disciplinary traps. 21 Despite the developments previously described in the attorney malpractice area, legal malpractice insurance is not mandatory in the United States, with the exception of Oregon, which is currently the only state that requires mandatory malpractice insurance. 22 In contrast, attorneys are required to obtain legal malpractice insurance in many other countries, like the United Kingdom, 23 where the risks of legal malpractice exposure do not measure up to what they are in the United States. 24 These staggering statistics demonstrate the reality of legal malpractice suits, which cannot and should not continue to be ignored by the legal community. It is critical that law schools, bar associations, and other sources educate both law students and practicing lawyers on this reality and the best way to shield themselves from it during the course of their careers. B. Grievances Against Lawyers As the [American] bar grows in size, [there is a] rising number of lawyer professional liability claims being brought ([for example] in Oregon, one in [ten] lawyers per year) and lawyer disciplinary proceedings being heard. 25 Clients are able to choose between filing a legal malpractice claim against their lawyers in court versus filing a grievance with the licensing board or, in some cases, they are able to pursue their claim under both tracks. To pursue the grievance option, a disappointed client may complain about her lawyer to the state licensing board and file a specific claim against her attorney there. The claim typically contains an accusation of the lawyer s failure to comply with one or more of the state rules of professional conduct. 26 These grievances form a rising number of lawyer professional liability claims and mirror the increase in legal malpractice suits in the United States Antonio Tony Alvarado, A Radical Proposal for Lifetime Professionalism, 37 ST. MARY S L.J. 1053, 1058 (2006). 22. See Webster, supra note 2, at Id. 24. King, supra note 3 ( A 2005 study showed 3.3 [American] lawsuits are filed each year for every 1,000 people. In comparison, in England only 1.2 lawsuits are filed annually for every 1,000 people. ). 25. Webster, supra note 2, at See, e.g., Filing a Complaint Against An Attorney, CLEVELAND METRO. BAR ASS N, (last visited Mar. 9, 2013). 27. Webster, supra note 2, at 44.
7 2013] WHAT GOES AROUND COMES AROUND 553 A punishing grievance filed against an attorney... does not compensate a client legitimately harmed by an attorney s negligence or incompetence. 28 In fact, should the licensing board determine the attorney violated one or more rules of the state s established standard for professional conduct, it can only discipline the lawyer and does not have the power to award any type of damages to the client. 29 In order to protect the accused attorney, state licensing boards and grievance committees do not make disciplinary information available to the public. 30 Although the grievance process 31 and practice varies from state to state, most states maintain confidentiality. 32 States, however, randomly offer general grievance information for a specific year or area of law. For example, available information shows that every year one out of ten 28. Nicole D. Mignone, Comment, The Emperor s New Clothes?: Cloaking Client Protection Under the New Model Court Rule on Insurance Disclosure, 36 ST. MARY S L.J. 1069, 1071 (2005). Sometimes clients prefer to sue for compensation rather than just file a complaint. Id. [T]he organized bar s attorney disciplinary proceedings treat respondent lawyers in much the same way our criminal systems treat defendants: the action is framed as a prosecution, operating between the state and the defendant. Jennifer Gerarda Brown & Liana G.T. Wolf, The Paradox and Promise of Restorative Attorney Discipline, 12 NEV. L.J. 253, 253 (2012). While clients are not awarded compensation for losses due to the attorney s actions with a grievance, if the lawyer has illegally taken or misused [the client s] money or property, [the client] may be eligible to recover the loss. Filing a Complaint Against An Attorney, supra note See Hon. Steven R. Plotkin & Anita C. Di Gioia, Where Do You Stand? Professionalism: Challenges for the 21 st Century, 47 LA. BAR J. 316, 318 (1999) ( [E]very state has the authority to discipline lawyers for acts of misconduct. Punishments include private admonition or reprimand, public reprimand or censure, suspension and disbarment. Additionally, a lawyer may be fined and/or ordered to make restitution and payment of costs. ); see also Kristina Serafini Pennex, Lifting the Veil of Secrecy by Opening Michigan s Disciplinary System, 73 U. DET. MERCY L. REV. 569, 570 (1996) (discussing Michigan s disciplinary system). 30. Overall, specific information pertaining to state disciplinary proceedings is impossible to obtain. However, a licensing board may decide to publicize a random statistical figure for a specific year and make a public general statement of some sort. For example, [l]awyer grievance and discipline information collected by the State Bar of Texas Office of the Chief Disciplinary Counsel indicates that the fields of practice from which complaints most often arise and the number of final disciplinary sanctions have both remained relatively constant for years. Alvarado, supra note 21, at It is interesting to note that although not as popular and common as it is today, the grievance process has been in existence for centuries. See Mignone, supra note 28, at 1071 ( Since at least the 1796 case of Stephens v. White, clients have been filing various types of legal malpractice grievances against their attorneys. ). 32. The rules governing this process make a grievance confidential until the Certified Grievance Committee files a formal complaint against the attorney or judge which is certified by the Board of Commissioners on Grievances and Discipline. Accordingly, you should not disclose to others that you have filed a complaint against an attorney or judge. Filing a Complaint Against An Attorney, supra note 26. The disciplinary system varies among the states regarding the point at which proceedings may be made public. Leslie C. Levin, The Case for Less Secrecy in Lawyer Discipline, 20 GEO. J. LEGAL ETHICS 1, 1 (2007).
8 554 SOUTHWESTERN LAW REVIEW [Vol. 42 licensed attorneys faces a disciplinary proceeding in Oregon, 33 while one out of eleven lawyers in Texas was the subject of a grievance claim in Thus, while the grievance process may not result in severe punishment of the lawyer and damages for the client, it nevertheless serves to provide clients with methods by which to ensure lawyers are reprimanded for their shortcomings. While statistics regarding grievances are generally kept confidential, the information that has been released demonstrates that lawyers truly do face the possibility of a grievance claim during their careers. C. Outsourcing of Legal Services In the past, pursuing lawyers, who are seen as the cause of the lawsuits, 35 was a unique American idea. 36 However, the increasingly global economy and the recently widespread implementation of legal outsourcing raise concerns that actions for legal malpractice will become global and will rise in number in the upcoming years. 37 Today, outsourcing of legal 33. Webster, supra note 2, at See 2007 Survey on Lawyer Discipline Systems, ABA STANDING COMMITTEE ON PROFESSIONAL DISCIPLINE, Chart I, cpr/discipline/07-full.authcheckdam.pdf (last visited Mar. 9, 2013) (indicating that the number of lawyers with active licenses totals 80,094, and that the number of complaints received by the disciplinary agency totals 6,954). 35. For the legal profession, its tarnished public image demands a polishing if the public views attorney honesty and ethics slightly above those of car salesmen and advertisers. Increasing malpractice claims barely forecast a more successful image in the legal professional climate. Mignone, supra note 28, at Not knowing the law or improperly applying it is the most common error alleged in malpractice claims. See ABA Standing Committee on Lawyers Professional Liability, supra note 13, at 1 (11.51% of all cases studied). Failure to file a document was the second most common reason. Id. (6.45% of all cases studied). Speaking more generally, 46.61% of all claims concern alleged substantive errors, with 28.63% of claims concerning administrative/filing errors. Id. at Foreign jurisdictions occasionally apply the substantive laws of foreign jurisdictions instead of their own law. See Vincent R. Johnson, Americans Abroad: International Educational Programs and Tort Liability, 32 J.C. & U.L. 309, (2006). Today, legal outsourcing has become more than common in American law practice. There were an estimated 1,300 Indian employees of American law firms in See Laura D Allaird, The Indian Lawyer : Legal Education in India and Protecting the Duty of Confidentiality While Outsourcing, 18 NO. 3 PROF. LAW. 1, 1-3 (2007). One study estimated this number to increase to 79,000 jobs by See Aaron R. Harmon, The Ethics of Legal Process Outsourcing-Is the Practice of Law A Noble Profession, or Is It Just Another Business?, 13 J. TECH. L. & POL Y 41, 60 (2008). Surprisingly, outsourcing has even reached the public sector and the judiciary. See Sasha Borsand & Amar Gupta, Public and Private Sector Legal Process Outsourcing: Moving Toward A Global Model of Legal Expertise Deliverance, 1 No. 1 PACE INT L L. REV. ONLINE COMPANION 1, at 1, 21 (2009).
9 2013] WHAT GOES AROUND COMES AROUND 555 services has become widely accepted notwithstanding the resulting ethical concerns and debate. 38 Thus, it seems inevitable that other countries will adopt the American core concept of legal malpractice in the near future. Although there are no reported global malpractice cases yet, some scholars predict their ability to follow the development of such cases shortly. 39 II. ABSENCE OF LEGAL MALPRACTICE EDUCATION A. In the Legal Community... The legal profession harbors a taboo regarding conversations about legal malpractice and grievances. 40 It does not make logical sense that, despite the importance of the issue, the conversation has been ignored by the legal profession, law schools, mandatory continuing legal education (CLE) programs, and even by scholarly and lay publications. 41 Because forty-two of the forty-four states that require their attorneys to attend CLE programs require them to specifically obtain Ethics, Malpractice Prevention, or Professional Responsibility credits, 42 it is surprising that malpractice is such a dirty secret for the legal profession. This is even more surprising in light of the fact that all professional license holders in the United States face liability and exposure issues 43 and, of all people, one can argue lawyers should be familiar with the idea. A definite explanation for this phenomenon is difficult to provide, but perhaps it may be largely attributed to the fact that attorneys are accustomed to seeing themselves as a 38. To that end, a number of ethical dilemmas remain unresolved by the American legal community. Among the main issues [presented by outsourcing] are preserving privileged communications, avoiding conflicts of interest, and ensuring adequate representation. Brandon James Fischer, Outsourcing Legal Services, in-sourcing Ethical Issues: An Examination of the Ethical Considerations Arising from the Practice of Outsourcing Legal Services Abroad, 16 SW. J. INT L L. 451, 461 (2010). 39. See Ethan S. Burger, International Legal Malpractice: Not Only Will the Dog Eventually Bark, It Will Also Bite, 38 ST. MARY S L.J. 1025, (2007) (stating that lawyers should become familiar with ethical standards on an international level although the number of international legal malpractice cases seems low, the author believes it will rise soon). 40. Mignone, supra note 28, at Manuel R. Ramos, Legal Malpractice: The Profession s Dirty Little Secret, 47 VAND. L. REV. 1657, (1994). 42. State MCLE Requirements, DIGILEARN ONLINE CONTINUING LEGAL EDUCATION, online.com/statereqs.asp (last visited Mar. 9, 2013) (noting that only six states do not require any CLE credits at all: South Dakota, Michigan, District of Columbia, Maryland, Connecticut, and Massachusetts, while Hawaii does not require ethics CLE courses). 43. See Douglas J. Besharov & Susan H. Besharov, Teaching About Liability, SOCIAL WORK, Nov.-Dec. 1987, at 517, available at legal/teachingabout_87.pdf (noting that even social workers are not shielded from liability).
10 556 SOUTHWESTERN LAW REVIEW [Vol. 42 party s representative in a lawsuit, rather than as a defendant. 44 In the end, this lack of knowledge and preparation on the issue only leads to unnecessary hardship for lawyers who face malpractice claims. Many in the legal field shy away from discussing legal malpractice or fail to do so because it may not appear to be a significant problem, perhaps in part because the number of grievance claims filed each year are not published. 45 As such, law students are generally unaware of the types of malpractice accusations they may face during their legal careers and therefore do not give much thought to developing a proactive approach to minimize their potential exposure. One law professor who was thunderstruck by a grievance claim early in her legal career, has explained how disadvantaged she was in terms of her lack of education and knowledge of the topic, as well as the strain on her mental strength, when she had to unexpectedly face her client s accusations. 46 Having survived this experience and having understood how important it is to be prepared to face such claims, Professor Canavan started a law school clinic that would allow law students to explore various ethical issues to learn how to handle them properly, a skill that would come in handy when they face real life ethical problems in their subsequent careers. 47 She based her approach on the view that all fundamentals, including malpractice education and prevention or minimization of exposure, should start in law school. 48 B. In Law School... Like it or not, legal malpractice is part of the legal landscape. 49 Therefore, it is logical that legal malpractice and grievance issues should be of growing concern, especially to law students and recent graduates, who 44. See Brown & Wolf, supra note 28, at 253 (comparing the treatment of attorneys in disciplinary proceedings to our criminal system). 45. See supra note 13 and accompanying text. 46. Marcia Canavan, Holistic Education in a Law School Ethics Clinic, 25 QUINNIPIAC L. REV. 337, 338 (2006). While representing a client, Professor Canavan subtracted 2.5 hours of work and court filing fees from a $500 retainer. Id. When the client decided to discontinue her divorce proceedings, she demanded the return of her full $500 retainer. Id. Professor Canavan remitted the remaining $250 with a letter and enclosed the itemized billing statement. Id. Despite this explanation, the client filed a grievance against Professor Canavan with her state licensing board. Id. After nine months, the client s grievance complaint was dismissed, but it left Professor Canavan thunderstruck. Id. at 339. As she recalls, One of the worst parts of the experience was how unprepared I was for it. The rules I had learned in law school...to pass the MPRE had very little to do with the real life experience of receiving a grievance or understanding and living the grievance process. Id. 47. Id. at Id. 49. Reforming Lawyers and Law Professors, supra note 11, at 2620.
11 2013] WHAT GOES AROUND COMES AROUND 557 may be especially unprepared to deal with the disciplinary system should they be subjected to it during their careers. [I]mprovements in regulation, enforcement, and especially education can reduce the degree of noncompliance. 50 To be effective, the education should address not only the basic duties of the lawyers but the practical reality of their breach. 51 That, however, is not the case in American law schools. Sadly, [i]t is rare that legal malpractice is even mentioned either in any law school course casebooks or in class. Even in the ethics casebooks[,] often less than one percent of the content includes any mention of legal malpractice. 52 Moreover, one scholar believes that what is mentioned is grossly inaccurate and misleading and adopts the ABA s and the insurance companies spin that legal malpractice is not a significant problem. 53 Despite the existing criticism in the community, law school curricula perpetuate the taboo and remain unchanged. 54 Today, many scholars and legal educators agree that law school curricula need to be changed so as to devote special attention to attorney malpractice and grievance education and prevention. 55 The ongoing debate, however, centers on the issue of whether these issues should be addressed in professional responsibility courses or whether other courses need to be created to address the topic specifically Carol Rice Andrews, Highway 101: Lessons in Legal Ethics That We Can Learn on the Road, 15 GEO. J. LEGAL ETHICS 95, 97 (2001). 51. Id. at , 118 (discussing her method for teaching professional responsibility by analogizing it to driving and the rules of the road, something to which students can relate). 52. Confessions, supra note 7, at Id. 54. See, e.g., Elizabeth A. Alston, Fundamentalism in the Legal Education Curriculum, 26 J. LEGAL PROF. 123, 148 (2002) ( Law schools have been blamed several times in Louisiana disciplinary jurisprudence for failing to teach such essential professional responsibility tenets as the necessities of maintaining, and properly using, a trust account. ). Another existing criticism is a lack of law school skills training pertaining to legal ethics, malpractice and various techniques relating to an attorney disciplinary proceeding. See Cecilia Bryant, The Fork in the Road: The Bifurcated Purposes of Legal Education, FLA. B.J., May 1997, 48, 54 (explaining that the 1992 MacCrate Report, which called for more skills teaching, was met with some resistance because skills courses increase cost due to lower student-teacher ratios). 55. See, e.g., Canavan, supra note 46, at 339; Reforming Lawyers and Law Professors, supra note 11, at 2624; Wasserman, supra note 1, at 4; Deborah L. Rhode, Legal Ethics in Legal Education, 16 CLINICAL L. REV. 43, (2009). 56. Wasserman, supra note 1, at 8.
12 558 SOUTHWESTERN LAW REVIEW [Vol. 42 C. Professional Responsibility Courses The ABA requires accredited law schools to teach a professional responsibility course. 57 Compliance with this rule usually consists of confining this topic to one class 58 and typically not including discussions about legal ethics in any other substantive courses. Most schools do not mention legal malpractice in the descriptions of their course listings. 59 The professional responsibility course itself carries a stigma. The course typically focuses on learning rules, and students feel they can do well in the course and exam simply by cramming for it. 60 The students often resent the course because they believe they are already ethical and do not need to study the material. 61 The other avenue of criticism is that the course is not practical and fails to offer specific tips for the practice of 57. Confessions, supra note 7, at (footnotes omitted) ( The ABA...requires only one course for all the law schools: ethics, which may also be called professional responsibility or the legal profession. ). 58. Steven C. Bennett, When Will Law School Change?, 89 NEB. L. REV. 87, (2010) (footnote omitted) ( While ethics training is now a staple in law school, most students take only one course on professional responsibility, which is focused on learning essential ethics rules. That course often taken in the third year of law school, is largely seen by students as no more than a requirement for graduation and an aid to passing the ethics component of the bar examination. ). Law schools may resist changing the system. Id. at For example, some schools have taken a more practical approach to educating young lawyers. Hofstra University offers a course in legal malpractice. See Legal Malpractice Law Review: LegalMalpractice.com and Hofstra University, LEXBLOG NETWORK, (last visited Mar. 9, 2013). The University of St. Thomas also offers a course in malpractice. Barbara L. Jones, UST to Offer Course in Legal Malpractice Starting in Fall, MINNESOTA LAWYER (May 19, 2008), cel.pdf. In fact, South Texas College of Law offers a unique skills-focused course on the topic as well. See South Texas College of Law, 2011 Summer Intersession Memo 1 (Jun. 10, 2011) [hereinafter 2011 Summer Intersession Memo] (unpublished manuscript) (on file with the author). 60. Confessions, supra note 7, at ( [A] student [does] well in [an] ethics course by doing an all-nighter before the exam, memorizing key passages of the ABA ethics code and taking the moral high ground in writing the answers to the exam. The ethics course not too surprisingly continues to be the most hated course in the curriculum. ). It is impressive but sad how the ABA, the legal profession, and the insurance industry, through confidential settlement agreements and putting a favorable spin on insurance legal malpractice data, have been able to fool not only the consumer public but lawyers, too, and for so long. However, there is no way to hide an epidemic that has grown to support a $4 billion a year tort system. Reforming Lawyers and Law Professors, supra note 11, at See Bruce A. Green, Teaching Lawyers Ethics, 51 ST. LOUIS U. L.J. 1091, , 1096 (2007) (footnotes omitted) ( The challenges include students natural resistance to the subject matter, the discomfort created by the tension between the law of lawyering and ordinary discourse and students lack of relevant background in legal practice and the law.... Law students, unfamiliar with the subject, are likely to assume that legal ethics is intuitive or that it is learned at our mothers knees. ).
13 2013] WHAT GOES AROUND COMES AROUND 559 law. 62 Some blame law school professors for maintaining the status quo on this subject for a variety of reasons: resistance to change, lack of experience practicing law, or the number of years since professors have practiced. 63 Most importantly, many argue that the course usually fails to educate the students about the reality of legal malpractice and attorney grievance claims. In response, one author offered her ideal professional responsibility course, which would be linked to a clinic, externship, or pro bono placement. 64 To make this a success, the proposed course would also require every faculty member to make efforts to address ethical issues in other courses. 65 However, a major challenge to this proposal would arguably be whether such a substantial change is practical and can be realistically implemented in a timely fashion. Another interesting discussion involves the ABA s current attempt to include student learning outcomes (i.e., the lawyering skills students gain at law school ) in the accreditation standards. 66 In fact, the Student Learning Outcomes Subcommittee, consisting of six members, is currently 62. Nicola A. Boothe-Perry, Professionalism s Triple E Query: Is Legal Academia Enhancing, Eluding, or Evading Professionalism?, 55 LOY. L. REV. 517, 549 (2009) ( Law schools appear to...fulfill their obligations to instruct prospective lawyers in conduct appropriate for the profession. Ethical scenarios are explored, and model rules and canons are oftentimes memorized by Bar-preparing law students. ); id. at (footnote omitted) ( Course materials to familiarize law professors with basic professional responsibility that fits into substantive areas and lends to discussions of professionalism are available to minimize any discomfort about wading into unfamiliar territory outside their expertise. ). 63. Alston, supra note 54, at 124 ( The focus in a professional responsibility class should be on what the student needs to know about how the practice of law is regulated in our society. The new lawyer should be equipped with an understanding of the duties and risks that he undertakes, and not just those of the entities he is suing or defending. Law students incur debt at a frightening rate and in frightening amounts; do law schools prepare them for the possibility of losing their ability to repay that debt due to professional conduct violations?... Are law students properly taught the skills necessary to protect their investment in a legal education from jeopardy? ). An additional concern is raised regarding the need to teach risk management and risk prevention skills to aspiring lawyers. Id. at 148. See Brent E. Newton, Preaching What They Don t Practice: Why Law Faculties Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C. L. REV. 105 (2010) and Douglas S. Lang, The Role of Law Professors: A Critical Force in Shaping Integrity and Professionalism, 42 S. TEX. L. REV. 509 (2001), for discussions about law school faculties experiences in practicing law and their perspective on how professional responsibility affect this area. 64. Rhode, supra note 55, at Id. Professor Rhode discusses many problems with the existing professional responsibility courses and offers a variety of solutions. Id. 66. Karen Sloan, Holding Schools Accountable; ABA Is Pushing Educators to Prove Their Law Graduates Can Cut It, NAT L L.J., Feb. 22, 2010, available at albanylawblogs.org/2010/02/22/national-law-journal-covers-student-learning-outcomesdiscussion/.
14 560 SOUTHWESTERN LAW REVIEW [Vol. 42 drafting new rules that would require law schools to identify the skills and competencies they want students to have when they graduate, and come up with ways to measure whether the schools are meeting those goals and fulfilling their stated missions. 67 One can only speculate whether this effort will bring a revolution to the existing model of the professional responsibility course, or require incorporating ethics and malpracticerelated skills into other parts of the existing law school curriculum. Although a professional responsibility course is not usually created and taught in a way that would help students avoid potential malpractice liability or disciplinary actions by their licensing bars, one may argue that change is on its way, as [a] few schools have been innovative in their professional responsibility training. 68 In response to the existing criticisms, a handful of legal ethics professors are already attempting to raise the standard of professional responsibility courses. To make the subject more realistic and applicable to students, some professors have started using various visual aids or their own legal practice experiences to enrich discussion. 69 In preparing students for the ethical issues they will face in practice, a couple of schools are offering extra ethics courses or roleplay practice and even ethics clinics where students attempt to assist attorneys facing accusations of ethical violations. 70 One law school, for example, has adopted three required professional responsibility courses, including one for first-year students, 71 while another school has approved a professional responsibility course where students role-play using a disciplinary proceeding scenario. 72 Other models for professional responsibility courses are starting to surface in different parts of the country Id. See Harriet N. Katz, Evaluating the Skills Curriculum: Challenges and Opportunities for Law Schools, 59 MERCER L. REV. 909, 911 (2008), for further discussion of adding skillsfocused simulation courses to curriculum. 68. Jeffery A. Maine, Importance of Ethics and Morality in Today s Legal World, 29 STETSON L. REV. 1073, 1082 (2000). 69. See id. at See, e.g., Anita Bernstein, Pitfalls Ahead: A Manifesto for the Training of Lawyers, 94 CORNELL L. REV. 479, 509 (2009); Mark Neal Aaronson, Thinking Like A Fox: Four Overlapping Domains of Good Lawyering, 9 CLINICAL L. REV. 1, 10, 13 (2002); Anthony V. Alfieri, Teaching Ethics/Doing Justice, 73 FORDHAM L. REV. 851, 857 (2004); Maine, supra note 68, at Maine, supra note 68, at 1082 (discussing innovative changes in the professional responsibility area at Notre Dame Law School). 72. Paula M. Young, Teaching Professional Ethics to Lawyers and Mediators Using Active Learning Techniques, 40 SW. L. REV. 127, (2010). 73. See, e.g., Lonnie T. Brown, Jr., Lawyers Not Liars : A Modified Traditionalist Approach to Teaching Legal Ethics, 51 ST. LOUIS U. L.J. 1119, 1124, 1127, 1132 (2007) (discussing a professional responsibility curriculum which includes the case method, class discussions of video clips, and offering extra credit for pro bono work); Julie A. Oseid, It
15 2013] WHAT GOES AROUND COMES AROUND 561 D. Alternative Law School Courses A few law schools have attempted to solve the problem in a different way by creating special courses that attempt to address the ethics-related skills component of the real life practice of law their graduates may face. 74 For example, the newly created course titled Attorney-Client Disputes is offered on a permanent basis at the South Texas College of Law in Houston, Texas. 75 This course gives students the opportunity to familiarize themselves with and take part in all developmental stages of an attorney grievance claim, from its initial filing with the state licensing board to the final appeal of the decision. 76 The students work on interviewing witnesses and preparing statements and questions for a disciplinary hearing. 77 Additionally, they have opportunities to engage in oral advocacy. 78 The course allows students to explore various ethical issues and learn how to handle them properly, a valuable skill that all attorneys need. 79 However, while a number of schools have created such courses, 80 the majority of law schools remain resistant to change and conform with the traditional longestablished approach to professional responsibility courses that simply ignores malpractice and leaves students ill-prepared for their futures. 81 Happened to Me: Sharing Personal Value Dilemmas to Teach Professionalism and Ethics, 12 LEGAL WRITING 105, 111 (2006) (discussing the professional responsibility teaching approach using the professor s own experiences to teach students and noting that a Practitioner Survey revealed that lawyers felt least prepared to handle Ethical Issues after leaving law school; therefore, it should be obvious that law schools need to spend more time preparing students for the ethical dilemmas they will face in practice (quoting Amy B. Cohen, The Dangers of the Ivory Tower: The Obligation of Law Professors to Engage in the Practice of Law, 50 LOY. L. REV. 623, (2004)). 74. See, e.g., Debra Moss Curtis, Teaching Law Office Management: Why Law Students Need to Know the Business of Being A Lawyer, 71 ALB. L. REV. 201, (2008) (explaining that a professor s course in Law Office Management skills includes a section about malpractice and the bar grievance process. In focusing on attorney behavior, a detailed discussion of the bar grievance process often leaves quite an impression on these students who have completed a course on professional responsibility, but who may not necessarily have considered the real-life consequences of the behavior learned in that class. ); Jessica Dopierala, Bridging the Gap Between Theory and Practice: Why are Students Falling Off the Bridge and What are Law Schools Doing to Catch Them?, 85 U. DET. MERCY L. REV. 429, 446 (2008) (describing the skills training provided by the University of Detroit Mercy School of Law through the Law Firm Program that provides students with more experience in practice-related issues) Summer Intersession Memo, supra note 59, at Id. 77. Id. 78. Id. 79. Id. 80. See supra note 59 (discussing various courses offered at law schools). 81. Bernstein, supra note 70, at
16 562 SOUTHWESTERN LAW REVIEW [Vol. 42 III. THE NEED FOR A SOLUTION... WHERE DO WE GO FROM HERE? In light of the information described in this Article, the need to prepare students to face a legal malpractice suit is more than obvious. 82 Today, [l]ittle argument can be made that the number of suits against attorneys will not increase. 83 One author compares legal malpractice litigation to bad-faith lawsuits against insurers [that] started as a trickle and swelled into a flood with the increasing volume of legal malpractice claims against lawyers that will also eventually become the staple of many practitioners. 84 It is undisputed that law school curriculum should strive to tell students what they need to know in order to enter their profession wellprepared to practice law. 85 In fact, a strong argument can be made that [k]nowing about pitfalls ahead of time makes new lawyers more, not less fulfilled and secure when they begin their work. 86 Most importantly, recent law school graduates, many of whom have school loan debts in front of them, are likely to be the most vulnerable to malpractice conduct. 87 As such, it is imperative that law schools become proactive in attempting to limit their graduates liability through education and training. As discussed in this Article, law schools rarely teach the grievance process. When legal malpractice becomes part of the law school or CLE program, either as a course or as a pervasive part of the curriculum, law graduates will be better prepared for the practice of law. 88 Students, especially those who aspire to be solo practitioners, 89 must recognize certain defensive aspects of practice: an effective conflicts checking 82. Reforming Lawyers and Law Professors, supra note 11, at 2618 ( Legal malpractice begins with law school and continues with CLE programs. ). 83. Schumann & Herlihy, supra note 6, at Id. 85. Bernstein, supra note 70, at (advocating a curriculum that teaches law students about the pitfalls of practicing law). 86. Bernstein, supra note 70, at Of the nearly 30,000 malpractice insurance claims analyzed, only 4% of the claims arose from lawyers practicing for four years or less. MALLEN & SMITH, supra note 12, at 1:7. However, this statistic may be misleading for two reasons. Presumably, young lawyers may be less likely to have insurance, and any claims against them would remain unreported. Id. 1:7, at n.18. Additionally, there is a time delay of one and a half to three years between the alleged error and the insurance claim. Id. 88. Reforming Lawyers and Law Professors, supra note 11, at Solo practitioners are particularly at risk of committing malpractice. See ABA Standing Committee on Lawyers Professional Liability, supra note 13, at 6 (noting that 37.24% of all claims studied were filed against solo practitioners and [a]s of 2000, solo practitioners represented the largest category of firms by size at 48% of all firms).
17 2013] WHAT GOES AROUND COMES AROUND 563 system, retainer agreements, client trust accounts, professional liability insurance, and the like. 90 CONCLUSION A major reform of law school curricula that incorporates mandatory education and training in legal malpractice and disciplinary proceedings is overdue. Law schools often take pride in their practical education and lawyer training and, as such, incorporating these critical aspects of learning is necessary to raise the standard. Various models have been explored and developed for the purposes of accomplishing this goal, including modification of the existing professional responsibility courses and the creation of special courses to address the subject. At this time, any effort to adopt this new important curriculum aspect is very important and both approaches can work simultaneously. Most importantly, the taboo must cease. Schools should welcome the discussion as a new challenge and opportunity to offer great service to future lawyers. It is a no-brainer that the American Bar Association would be the best entity to head this new effort. It needs to recognize the widespread reality of legal malpractice and disciplinary actions and take the appropriate action that is so long overdue. 90. Bennett, supra note 58, at
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