Document Type

Article

Publication Title

Marquette Law Review

Publication Date

2002

Abstract

Over the last century the. legal malpractice tort has remained constant while the rest of the legal world of negligence has been modified to increase duties and influence conduct to conform to our modern sense of fairness. In a century in which consumers of products have been catapulted out of the legal dungeon of "no privity" to the shining sea of strict product liability, in which consumers of medical services have been protected by the creation of an entirely new tort of informed consent, and in which trespassers have been given protections against dangerous conditions, only the consumers of legal services have been left with the meager rights provided by unmodified nineteenth century doctrine. The legal malpractice tort, alone, retains defendant protections that have been denied to others.

The primary focus of this Article is to identify the dynamic that has prevented the incorporation of modern doctrines of liability into this tort. These doctrines would enhance the ability of those who have been injured by negligent legal services to gain compensation. However, the judicial system, through which malpractice rules regulate the bar, has prevented their adoption. This Article will also propose modifications to these judicially created rules and demonstrate that they lack justification. But no proposal to change such rules, which have withstood the assault of time and vast changes in public perceptions, could succeed unless it identified the factors that have caused them to persist. Without knowing how the legal malpractice tort has withstood the whirlwind of twentieth-century tort reform and remained stagnant while all else has changed, no changes are likely to be adopted.

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