A No-Fault Remedy For Legal Malpractice

 In Articles, Symposium

The last forty years have seen a marked rise in legal malpractice lawsuits. Recent numbers show that no abatement is in sight; instead the number of large legal malpractice claims is steadily increasing. Some have estimated that as many as one in five attorneys is sued for legal malpractice over the course of their careers. Malpractice insurance providers note “elevated defense costs” as an element in these large judgments. Although lawyers have a personal interest in limiting liability, they also have a professional one in protecting clients from harm arising due to malpractice. But how can the legal profession curtail and manage malpractice liability while also providing relief to injured clients?

Here, no-fault systems could provide an alternative to traditional civil suits to compensate clients for harm. But is it possible to create a no-fault system where injured clients would trade causes of action in tort for predictable, expedient (albeit partial) compensation?6 What would injury look like? What would partial compensation entail? Despite these important questions, the advantages of a no-fault system for sued lawyers are clear: predictability and the ability to plan ahead by setting aside funds for payouts. The chief benefits for the client are expediency, predictability, and a guarantee of compensation once harms are established.

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