Diary

Tort Reform and Unscrupulous Attorneys

[This started out as a rant on cas21’s Tort Reform diaries, but became too long]

One measure to curb tort abuse that doesn’t require any tinkering with states rights is to turn the tables on the legal profession. This means promoting the theory of legal malpractice. Unfortunately, this would require a long term cultural shift and not a quick political or legislative solution.

Large jury awards are a problem. But how attorneys get there and the damage they do along the way are just as problematic.

There are few repercussions for attorneys who turn their practices into processing plants. Law firms take all comers. Bad cases go to unqualified clerks and incompetent associates and get settled for pennies on the dollar. They’d just assume take a high volume cases and settle for easy money than labor over a small volume of cases.

In some ways, many are like lotto layers. They just keep firing away, churning cases out, until one lawsuit hits the jackpot and they collect their third. It makes no difference whether the case if frivolous or not, most people will settle anyway.

Along the way, vulnerable clients are misled, clients with small, valid claims are betrayed, defendants must choose between incurring the cost of a settlement or incurring the cost of defending frivolous claims, and so on and so on. Frivolous lawsuits and unscrupulous attorneys do much harm.

Yet, they get away with it because no one is there to hold them accountable. No one is guarding the guardians. Lawyers prefer not to sue each other. It’s a messy can of worms they would rather not open.

But think of all the malpractice claims filed against the health care industry. Are we to assume that only doctors and nurses commit malpractice? Are we to assume that legal professionals are virtuous, competent public servants who need little oversight? An occasional smack down from an oversight board is all they ever get.

All attorneys see it. It’s like a big inside joke. Even the good attorneys often get paid to push paper. There is an illusion of professionalism. They talk about stupid clients. They collude with each other. They have a good chuckle over all the shenanigans they witness. Attorneys show up to court with hangovers or, better yet, sometimes they get called in to court after they’ve been on a two hour martini lunch. They “barter’ for their services.

But the doctor in the middle of stressful operation, who chooses good valid option ‘A’ over better valid option ‘B’, according to handful of experts, is the problem.

Call it malfeasance. Call it fraud. Call it misrepresentation. IT IS LEGAL MALPRACTICE. The system needs more checks. It is rigged on behalf of those who benefit from a litigious culture. A stronger system of penalties, fines, suspensions and legal malpractice suits should be encouraged. It would do a great dealt to turn the tide without any real tinkering with or from the federal government.

Politically, it’s a winning issue. People do not like lawyers. At a state level, there could be many small measures that could create more oversight. Attorney Generals could beef up consumer protection bureaus to fight legal fraud and malfeasance. Laws could be amended to explicitly incorporate legal malpractice into standard ‘Unfair and Deceptive Acts and Practice’ statutes. Statutes and regulations involving professional responsibility could be bolstered. Oversight boards could be empowered. And so on.

If they don’t like, they can get out. There are too many lawyers anyway. Both the people and honest lawyers would benefit from a purge. It’s just one step that is needed amongst many, but it is needed.