Speculating on the Future of Attorney Responsibility to Nonclients

Abstract:     
The trend toward greater liability to one's opponents in litigation is but one example of the overall diffusion of attorney responsibility. This may represent either greater animosity aimed at attorneys or broader liability across the board in society. Other explanations include a diffusion of attorney roles with a corresponding trend toward unifying standards of liability for a broad range of service professionals, as well as a pluralization of the attorney client relationship. Primarily, however, the trend toward greater responsibility to nonclients represents a crumbling of the overriding fidelity to a partisan adversary ethic. To the extent this trend is present in the core of the adversary system its extension to non-litigation fields of practice seems even more likely.

Broader liability may be a result of or an incentive for change in legal culture. Even if standards of liability do not encourage attorneys to balance their adversarial zeal on behalf of clients with some concern for fairness toward third parties, the culture of the law may be changing to an extent which will encourage this change. The number of individuals and entities that are opting out of litigation, or who are forced by law to pursue less adversarial methods of dispute resolution, indicate that the overriding ethic of adversarial partisanship is beginning to be balanced with concerns toward more cooperative transactional and dispute resolution methods. The increasing popularity of mediation for a broad range of dispute resolution and the significant debate over the proper role of attorneys in this field is but one indication of this trend.

Keywords: Professional responsibility, Liability, Attorney client, Third parties, Alternative dispute resolution, Mediation, Diversification, Nonclient, Rule 11, Model Rules

JEL Classifications: K10, K13, K40, K41

Working Paper Series