The more things change, the more they stay the same.
Missed deadlines and unreturned phone calls get lawyers in trouble today – just as they did 35 years ago.
And practice areas like real estate and securities work have continued to be risky as the decades passed.
But here is one thing that has changed since 1979: back then, lawyer malpractice was an “impending” problem and a liability insurance crisis was “looming.”
Both of those shoes have long since dropped with resounding thuds.
I began thinking about all this when I cleaned out a closet and found a May 1979 issue of the South Carolina Law Review (SCLR). (Disclosure: I graduated from USC Law School and was somehow selected for law review.)
That entire issue was devoted to the subject of Legal Malpractice. To say that the late 70s was a kinder, gentler era when it came to lawyer liability is an understatement.
In fact, nobody was really even talking about it.
“The phrase legal malpractice is commonly used to describe a kind of tortious conduct, but there is little agreement on, or even discussion of, the meaning of the phrase,” according to California ethics expert Ronald Mallen in the opening article.
Cracking The Conspiracy of Silence
Up through the 1960s the legal profession enjoyed what one SCLR author described as a “conspiracy of silence” regarding legal malpractice.
“[T]he lawyer who undertook to sue a colleague for malpractice was granted full pariah status in the local legal community,” wrote attorney Richard Bridgman.
The worm turned in the 1970s. Lawyers starting suing other lawyers. Liability insurance rates soared.
“Much of the bar has belatedly accepted that lawyers are not, and ought not to be, above the law,” Bridgman wrote. “We, like all persons, should be accountable for our neglect. In these times when our image is tarnished by the aftermath of Watergate, this accountability is a healthy sign. To regain the public trust, it is fitting that the profession say a mea culpa.”
And we are still saying it.
Malpractice Snapshots: Then and Now
Here are some other historical nuggets of interest from 1979:
- Time is not on my side. Forty-five percent of all claims presented against attorneys in the 1970s concerned missed time deadlines, often the statute of limitations.
- More lawyers, more claims. The number of insured lawyers increased by 34 percent from 1971 to 1975. Claims against insured lawyers rose by 90 percent for the same time period.
- The State Bar cannot do it alone. “It seems certain that reliance upon the attorney disciplinary process alone will not achieve adequate levels of attorney competence and ethical behavior.”
- Advertising and specialization were picking up steam in 1979. Law professor Nathan Crystal warned: “Lawyers should be aware, however, that advertising and specialization of legal services may raise the standard of practice that will be expected of lawyers and may result in increasing malpractice risk. If a lawyer advertises, he may impliedly warrant the quality of the service.”
And if you think you get no respect today, consider the 1782 words of St. John Crevecoeur as quoted in SCLR: “Lawyers are plants that will grow in any soil cultivated by the hands of others; and when once they have taken root they will extinguish every other vegetable that grows around them. The fortunes they daily acquire in every province from the misfortunes of their fellow citizens are surprising.”
So much for the good old days.
Source: South Carolina Law Review – Symposium: Legal Malpractice, Volume 30, Number 2 (May 1979)