Law as a Profession: Examining the Role of Accountability
Fortney, Susan Saab, Fordham Urban Law Journal
Introduction I. The Limited Liability Movement: Where Were the Lawyers? II. Mandatory Legal Malpractice Insurance: How the United States Differs from Other Countries (In Not Protecting Consumers) III. Mandatory Disclosure of Insurance: What the Debate Reveals about Lawyer Attitudes Conclusion: Embracing Accountability and Distinguishing Law Practice as a Profession
In asserting that law is a profession and not a business, lawyers often refer to the role self-governance plays in the legal profession. Julius Henry Cohen captured this sentiment in making the following exhortation: "Ours is a profession.... We are all in a boat. The sins of one of us are the sins of all of us. Come, gentlemen, let us clean house." (10 As members of a profession, Cohen asserts that lawyers may be brought to prompt and summary accountability through a collective enterprise. (2)
When Cohen and other bar leaders speak of accountability, their focus is often on the role that professional discipline plays in protecting the public. A similar concern relates to protecting the public by limiting law practice to attorneys who complete a course of education and demonstrate the requisite character befitting a member of the bar. (3)
In his essays, Cohen recognizes the disparate positions of lawyers and their clients. For example, he notes that clients may not have the background or expertise to make informed judgments in retaining a lawyer. (4) Because lawyers stand in a position of trust and confidence, Cohen advocates limiting law practice to persons who possess "adequate learning and purity of character." (5) This approach to public protection targets the qualities of those who enter the door of the profession. Once admitted, the focus turns to policing those practitioners whose conduct runs afoul of the minimum standards to avoid professional discipline. (6) Far less attention is devoted to considering accountability of lawyers who depart from standards of care applicable in professional liability cases.
This Article will address this gap by examining accountability in the context of professional liability. To do so, it will consider select developments that required lawyers, the organized bar, legislators, and jurists to balance lawyer self-interest and public protection. Specifically, this Article will consider lawyers' collective campaign to limit their vicarious liability, as well as developments related to lawyers carrying legal malpractice insurance. An examination of legislation and regulatory decisions related to lawyers' professional liability over the last two decades reveals that accountability concerns may not have been adequately considered because of the absence of advocacy on behalf of consumers and the public. For lawyers and law professors committed to advancing the status of law as a profession, this Article ends by urging them to take steps to promote financial responsibility as a basic tenet of professionalism and to support initiatives that protect consumers injured by lawyers' professional misconduct.
I. THE LIMITED LIABILITY MOVEMENT: WHERE WERE THE LAWYERS?
Over the last century, the limited liability movement resulted in the most radical departure from a civil liability regime holding lawyers accountable for the acts and omissions of their law partners. Unlike the business and tax-related interests behind allowing lawyers to practice in professional corporations, the push behind the limited liability partnership structure was the desire of lawyers to limit their vicarious liability for their partners' professional malpractice. (7) In lawyers' campaign for limited liability, public protection was largely a secondary concern. (8) While a few states included insurance requirements and other protections to provide some degree of public protection, injured parties' ability to hold firm partners jointly and severally liable was virtually eliminated once the law firm converted to limited liability status. …