The Politics of Lawyer Regulation: The Case of Malpractice Insurance

71 Pages Posted: 9 Jul 2020

See all articles by Leslie C. Levin

Leslie C. Levin

University of Connecticut School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: June 16, 2020

Abstract

This Article examines the politics of lawyer regulation and considers why some states will adopt lawyer regulation that protects the public, when others will not. It uses the debates over how to regulate uninsured lawyers as a lens through which to examine the question. Clients often cannot recover damages from uninsured lawyers who commit malpractice, even when those lawyers cause serious harm. Yet only two states require that lawyers carry malpractice insurance. This Article uses case studies to examine the ways in which six states recently have addressed the issue of uninsured lawyers to understand this regulatory failure. It uses interest group theory and cultural capture to explain why state supreme courts and legislatures rarely initiate efforts to regulate lawyers in this context, and why lawyer regulation is so dependent on the organized bar. The case studies suggest when some state bars will act to regulate lawyers in this context, and factors that affect whether states will ultimately adopt public-regarding laws. The Article concludes that if courts and legislatures will not initiate or support lawyer regulation that is unpopular with the bar, other means are needed to inject the public’s interests into the regulatory process. It suggests two ways to do so.

Keywords: Legal Profession, Courts, Judges, Bar Associations, Legal Ethics, Law & Society

JEL Classification: K29, K40

Suggested Citation

Levin, Leslie C., The Politics of Lawyer Regulation: The Case of Malpractice Insurance (June 16, 2020). Georgetown Journal of Legal Ethics, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3628402

Leslie C. Levin (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
860-570-5207 (Phone)

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