Issue 4
Fall '20

The Politics of Lawyer Regulation: The Case of Malpractice Insurance

Written By: Leslie C. Levin

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.

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