'Lawyers’ professional liability: comparative perspectives' by Herbert M Kritzer in (2016)
International Journal of the Legal Profession 1-17 comments
Among the four mechanisms of discipline and regulation of legal professionals identified by David Wilkins, liability controls have received almost no attention from scholars who study legal professions. This paper presents a comparative analysis of what is known about lawyers’ professional liability drawing on reports concerning a group of 13 countries representing every continent. The discussion covers three topics: the frequency of LPL claims; the areas of practice that produce LPL claims; and insurance requirements and arrangements for compensating those who successfully bring an LPL claims. The analyses show that empirical information is available for only a small subset of the countries considered, but what is available shows very substantial variation in both the frequency of claims and the areas of practice producing those claims. Insurance requirements and arrangements also vary substantially, with LPL insurance being mandatory in only about half of the countries.
Kritzer argues that
Legal professions are subject to regulation and discipline through a variety of mechanisms. Wilkins ('Who should regulate lawyers?' (1992) 105 Harvard Law Review, 799, 805) identified four such mechanisms: disciplinary controls by institutions such as the courts or the profession itself; institutional controls, meaning regulation by the venues before which legal professionals appear; legislative controls, meaning a legislatively-established administrative agency; and liability controls whereby those with grievances with a legal professional seek redress by initiating a claim which could ultimately be decided through litigation. This paper focuses on the fourth of these mechanisms: lawyers’ professional liability (LPL), a topic that has until recently received little attention from students of the legal profession. The central question addressed here is cross-national variation in certain aspects related to the role of LPL as a potential mechanism of regulation. Liability controls focus primarily on compensating clients for injuries they have received due to actions of their lawyers; in some circumstances lawyers can also be liable to non-clients, either third-party beneficiaries of the original client or adverse parties. While there may be some circumstances in which a disciplinary body can order a lawyer to provide compensation to a client who has been harmed, that route for compensation is not considered in what follows.
Liability controls of lawyers differ from the other methods of regulation by assigning a primary role to the client thereby prioritizing access to justice for the client. The other mechanisms are designed largely to prevent harm by establishing a set of norms and rules that provide direction for practitioners. Those other mechanisms do include sanctioning tools that can serve a deterrence function; in an extreme case they may protect consumers from errant lawyers by removing the lawyer’s authority to practice. However, mechanisms other than liability controls typically do not include a compensation as a primary function. Moreover, the threat of liability means that even where insurance is not required most lawyers, at least in the United States, carry professional liability insurance that serves as a guarantor of compensation when a lawyer is determined to be liable.
A comparative look at liability claims against legal professionals adds an important dimension to our understanding of how professions are regulated. As the subsequent sections show, the information available cross-nationally is limited in many ways. While legal provisions regarding the professional liability of legal professionals are relatively easy to determine, the processing of liability claims requires systematic data that are not currently available for most jurisdictions. This article shows the limits of the information that is available and provides an overview of what can be discerned.
After a brief discussion on methodology in the next section, I consider some of the problems of comparing lawyers’ professional liability across countries. Subsequent sections cover frequency of legal malpractice, the frequency of LPL claims, the areas of practice producing LPL claims, and issues related to LPL insurance.
