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Electronic copy available at: http://ssrn.com/abstract=976478

Do Judges Systematically Favor the Interests of the Legal Profession?

Benjamin H. Barton

1

This Article answers this question with the following jurisprudential hypothesis: many

legal outcomes can be explained, and future cases predicted, by asking a very simple

question, is there a plausible legal result in this case that will significantly affect the

interests of the legal profession (positively or negatively)? If so, the case will be decided

in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive

psychology and economic theory. The Article then gathers and analyzes supporting

cases from areas as diverse as constitutional law, torts, professional responsibility,

employment law, evidence, and criminal procedure.

The questions considered include: why are lawyers the only American profession to be

truly and completely self-regulated? Why is it that the attorney-client privilege is the

oldest and most jealously protected professional privilege? Why is it that the Supreme

Court has repeatedly struck down bans on commercial speech, except for bans on in-

person lawyer solicitations and some types of lawyer advertising? Why is it that the

Miranda right to consult with an attorney is more protected than the right to remain

silent? Why is legal malpractice so much harder to prove than medical malpractice?

The Article finishes with some of the ramifications of the lawyer-judge hypothesis,

including brief consideration of whether our judiciary should be staffed by lawyer-judges

at all.

Physicists and law professors (among many others) are in continuous search of a grand theory of

everything. Being a relatively adventuresome fellow, I too have engaged in this quixotic search.

While I have failed (thus far) to create a legal theory of everything, I believe that I have stumbled

upon a heretofore undiscovered theory that explains and predicts decisions in any case that

seriously affects the legal profession.

Here is my lawyer-judge hypothesis in a nutshell: many legal outcomes can be explained, and

future cases predicted, by asking a very simple question: is there a plausible legal result in this

case that will significantly affect the interests of the legal profession (positively or negatively)?

If so, the case will be decided in the way that offers the best result for the legal profession.

2

Of course, there are many cases that will pit factions of the legal profession against each other,

3

and while there may be certain classes of lawyers that are privileged as a rule over other classes,

1 Associate Professor of Law, University of Tennessee College of Law. B.A. 1991, Haverford College; J.D. 1996,

University of Michigan.

2 In this Article I use the expressed desires of bar associations as a proxy for what the profession as a whole would

prefer, or at least a majority of the members of the profession who are in bar associations. If it strikes you as

overreaching to refer to the “interests of the legal profession” in the article, please add the modifier “as expressed by

bar associations.”

3 For example, the interests of the plaintiffs’ bar and the defense bar (or of prosecutors and defense lawyers) diverge

regularly.

Electronic copy available at: http://ssrn.com/abstract=976478

this theory does not address that question. There are also cases where the pro-lawyer position is

so clearly against the weight of precedent that there is actually not much of a decision to be

made.

Nevertheless, if there is a clear advantage or disadvantage to the legal profession in any given

question of law the cases are easy to predict: judges will choose the route (within the bounds of

precedent and seemliness) that benefits the profession as a whole. In support of this hypothesis I

offer examples drawn from multiple, distinct areas of the law. In so doing I hope to establish the

accuracy of the theory and its far reaching consequences. As a bonus, I also offer a single

explanation for a series of puzzling legal anomalies.

For example, why are lawyers the only American profession to be truly and completely self-

regulated? Every other profession at least has to push their self-regulatory apparatus through

state or federal legislatures.

4

By contrast, lawyers are regulated in the first instance by

lawyers/justices from the state supreme courts, often as a result of virtually irreversible state

constitutional law or judicial fiat. Predictably, this level of self-regulation has been

exceptionally helpful to the legal profession as a whole.

Why is it that the attorney-client privilege is the oldest and most jealously protected of all the

professional privileges? The attorney-client privilege has been protected at common law for

more than 300 years. By contrast, there was never a common law doctor-patient privilege. That

privilege has been largely established by statute.

Why is it that the Supreme Court has repeatedly struck down bans on commercial speech since

the 1970s except for in-person lawyer solicitations and some types of lawyer advertising? A ban

on in-person solicitation by accountants, by comparison, was struck down.

Why is the Miranda right to consult with an attorney protected so much more fervently than the

right to remain silent? When a suspect asks to see a lawyer all interrogation must stop until the

lawyer arrives or a substantial period of time elapses. By contrast, if a suspect says “I would like

to remain silent” the police can wait a period as short as a few hours and resume questioning.

This is so despite the fact that Miranda protects the Fifth Amendment right to remain silent, and

not the Sixth Amendment right to counsel.

Why do courts flatly refuse to enforce a noncompete agreement amongst lawyers? By contrast,

other professional noncompete agreements are analyzed on a case-by-case reasonableness basis.

Lastly, why is a legal malpractice case so much harder to make out than a medical malpractice

case? Why has the doctrinal broadening of liability for doctors (and other tort defendants) been

so slow to reach lawyers? In most legal malpractice cases a plaintiff must prove a “case within a

case” to satisfy the element of causation. Thus, the plaintiff must establish both negligence and

that “but for” that negligence she would have won (and collected on) the underlying case at trial.

By contrast, in many states a patient can recover against a doctor for a “lost chance” of survival.

5

4 Every question and answer on this page will be covered and fully supported infra.

5 In the interests of brevity I have limited myself to these questions. There are numerous other examples, however,

including the cozy working relationship between the bankruptcy bar and bankruptcy courts, cf. LYNN LOPUCKI,

These legal issues cut across professional responsibility, evidence, constitutional law, criminal

procedure, employment law and torts. Each has been explained within their own boundaries, but

I argue that they are better understood as examples of the lawyer-judge hypothesis in action.

These are cases where judges simply found a way to treat lawyers better than other litigants.

There are two remaining questions. First, why does this happen? There are a number of

conscious factors that might influence judges in these cases: they are all lawyers, many of their

friends and colleagues are lawyers, and (whether they are elected or appointed) they likely have

their job in large part because of the efforts of other lawyers on their behalf. Anyone familiar

with public choice theory will understand why, on balance, the judiciary would favor the

interests of the individuals who they interact with on a daily basis over the public at large.

The conscious factors are only part of the story, however. An additional factor is what some

economists have come to call “the new institutionalism,” where an institution is not a building or

fixed social group, it is a set of norms, thought patterns, and behaviors. In short, a “new”

institution is a way of looking at and processing the world, a kind of uber-heuristic. Law

professors regularly brag that they teach a law student to “think like a lawyer,” a jarring and

grueling process that, when successful, actually creates a new way of analyzing and processing

the world. This education is only reinforced by years of practice. Judges tend to come from a

very select group of individuals who have thrived within the institution of legal thought and

practice. As a result judges take a particular set of deeply ingrained biases, thought-processes,

and views of the world with them to the bench. These institutions can’t help but color and

control judicial thinking and outcomes, and the cases that affect the legal profession as a whole

are just one of many cases where the institution of judicial thought plays itself out.

The second question is harder: is this a bad thing, and what, if anything, can be done about it?

As a general rule I think most people react negatively to a series of decisions that establish a bias

amongst judges for or against any segment of society, so I will assume, for now, that the

treatment of the legal profession by the judiciary is, on balance, insalubrious. That being said,

any potential cure to this bias might be worse than the problem.

I will return to this question later, but I first turn to persuading you the lawyer-judge hypothesis

is correct. Part I lays out a theoretical basis for my hypothesis. Parts II through VII lay out the

examples of the lawyer-judge hypothesis listed above. Lastly, Part VIII briefly discusses

(without coming to any conclusions) the ramifications of the lawyer-judge hypothesis.

I.

The Theory

In recent years there has been an increasing focus on judicial decision-making processes and the

behavior of judges. At its heart this study can be summarized thusly: Judges are people too.

They are driven by the same combination of incentives, experiences and cognitive biases that

COURTING FAILURE (2005) (detailing same), the differential treatment of Legal Service Attorney speech and

abortion clinic employee speech, compare Legal Serv. Corp. v. Velasquez, 531 U.S. 533 (2001) with Rust v.

Sullivan, 500 U.S. 173 (1991), and the treatment of lawyer and non-lawyer whistleblowers in employment law, see

Wieder v. Skala, 80 N.Y.2d 628, 633 (1992).

drive the rest of us. In this vein, political scientists study the “attitudinal model,” which argues

that political ideology is the single best predictor of judicial decisions.

6

Cognitive psychologists

study judicial heuristics.

7

Economists wonder what incentives control judicial behavior.

8

While some empirical studies have suggested ways these various incentives play out in practice,

9

scholars have had a hard time translating these incentives into substantive law, i.e. finding areas

of the law where they apply sufficiently to have a predictive value. In this way the empirical

studies have suffered from a “missing link” problem – they’ve established that judges take

certain shortcuts in deciding all cases, but they have not shown a rule that predicts an outcome in

any particular type of case. The lawyer-judge hypothesis bridges this gap by establishing

predictable legal results from judicial attitudes and incentives.

This Article uses aspects each of the above areas of study, as well as the sociology of the

professions and the new institutionalism, to discuss why we would expect judicial incentives and

proclivities to lead to decisions that favor the legal profession. I start from the least subtle, and

most crass, reasons, and then proceed to the subtler and more important reasons.

Most studies of judicial incentives focus on non-monetary incentives, such as maximizing leisure

time, prestige, or opportunities for further judicial promotion rather than salary effects, on the

assumption that judicial decisions have no effect on salaries.

10

Nevertheless, the lawyer-judge

hypothesis shows that at least one class of decisions, those that directly affect the legal

profession, can have direct and indirect judicial salary effects.

A brief study of judges -- who they are, how they are trained, what their jobs are like, and salary

effects -- leads to the inevitable conclusion that judges will regularly favor the interests of

lawyers over other litigants. Many judges rely upon lawyers to get or keep their jobs. Most state

judges face some type of election (either contested or retention),

11

and lawyers provide most of

the elected judiciary’s campaign donations.

12

In elective states – including merit selection states

with retention elections – bar associations frequently endorse judicial candidates,

13

and conduct

and publish “bar polls” on the judges.

14

Many judges were selected for their positions through

6 See, e.g., JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993).

7 See, e.g., Stephen M. Bainbridge & G. Mitu Gulati, How Do Judges Maximize? (The Same Way Everybody Else

Does – Boundedly): Rules of Thumb in Securities Fraud Opinions, 51 EMORY L.J. 83 (2002).

8 See Richard A. Posner, What do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 SUP.

CT. ECON. REV. 1 (1993).

9 See, e.g., Bainbridge & Gulati, supra note __,

10 See Posner, supra note __, at 13-23.

11 See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, STATE COURT ORGANIZATION 1998, at 19 (1998)

(estimating that 84% of state judges face some type of election).

12 See David Barnhizer, “On the Make:” Campaign Funding and the Corrupting of the American Judiciary, 50

CATH. U. L. REV. 361, 393 (2001) (delineating the judiciary’s reliance upon lawyer campaign contributions and its

deleterious effects); Rocha v. Ahmad, 662 S.W.2d 77, 78 (Tex. 1983) (“It is not surprising that attorneys are the

principal source of contributions in a judicial election.”).

13 See Roy A. Schotland, Elective Judges' Campaign Financing: Are State Judges' Robes the Emperor's Clothes of

American Democracy?, 2 J.L. & POL. 57, 121-32 (1985) (describing effect of bar endorsements).

14 See JAMES H. GUTERMAN & ERROL E. MEIDINGER, IN THE OPINION OF THE BAR: A NATIONAL SURVEY OF BAR

POLLING PRACTICES (1977).

“merit plans” that place substantial selection authority in state and local bar associations.

15

Any

judges who hope to join the federal judiciary rely upon the ABA for a favorable rating.

16

Bar

associations have further massaged the judicial salary incentive by working tirelessly for higher

salaries for judges.

17

Further, the vast majority of judges were practicing attorneys before taking the bench.

18

Most

judges are members of bar associations.

19

Of course bar association membership and a career as

a lawyer really only begins to describe the effects of judicial “membership” in the legal

profession. It is both temporally and emotionally accurate to say that judges are lawyers first.

Most judges have spent most of their careers and formative working years as lawyers. Their peer

group, former colleagues, and many of their friends are all likely to be lawyers. Each of these

contacts and experiences work on a conscious and subconscious level. On a conscious level any

judge will think hard about the reactions of his or her peer group and friends to a decision that

will have a substantial effect on them. Judges also want to maximize their own “prestige,” which

generally means standing among other lawyers.

20

Judges also work in a remarkably insulated world. Americans pride themselves on an

independent judiciary. As a result judges are sheltered, to the extent possible, from direct

lobbying and even much contact with the non-lawyer public at large outside of litigants,

witnesses, and jurors. The regular contact between judges and lawyers thus looms even larger in

the judicial worldview, and makes judges an easy target for formal and informal lawyer

lobbying.

A closer examination of the nuts and bolts of a judge’s job also demonstrates how critical

lawyers are to the work of judging. In the advocacy system most judges rely on the lawyers to

15 See Kelley Armitage, Denial Ain’t Just a River in Egypt: A Thorough Review of Judicial Elections, Merit

Selection and the Role of State Judges in Society, 29 CAP. U. L. REV. 625, 656 (2002) (“History has shown that trial

lawyers and their acolytes have controlled merit selection committees.”).

16 See The Role of the American Bar Association in the Judicial Selection Process, 101st Cong., 1st Sess. (1989).

Unsurprisingly, scholars have noted that ambition plays a part in the judicial utility function. See Frederick Schauer,

Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior, 68 U. CINC. L. REV. 615, 631-33

(2000).

17 The ABA and state bars lobby for higher salaries, better benefits, and improved public opinion of the judiciary.

See, e.g., State Bar of Georgia Commission on Judicial Service, Proposal, at

http://www.gabar.org/public/pdf/LEG/Commission_Judicial_Service_Proposal (last visited January 15, 2007);

AMERICAN BAR ASS’N & FEDERAL BAR ASS’N, FEDERAL JUDICIAL PAY EROSION: A REPORT ON THE NEED FOR

REFORM (2001).

18 See DORIS PROVINE, JUDGING CREDENTIALS: NONLAWYER JUDGES AND THE POLITICS OF PROFESSIONALISM

(1986) (describing the gradual replacement of non-lawyer judges with lawyer judges).

19 In the thirty-six states with a unified bar, judges are licensed attorneys, and ipso facto are members of the state

bar association. Twenty-seven states explicitly require their supreme court justices to be members of the state bar.

THE COUNCIL OF STATE GOVERNMENTS, STATE COURT SYSTEMS 6-7 (1978). Since 1910 the ABA has recognized

the importance of recruiting the judiciary and made a concentrated effort to sign up judges, boasting that as of 1915,

85% of the federal judiciary and 56% of state judges were members. See 40 ABA REP. 30 (1915). At present more

than 4000 Judges are members of the ABA. See ABA, Judicial Division, at

http://www.abanet.org/jd/membership.html (last visited January 5, 2007).

20 See Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148

U. PA. L. REV. 743, 784-85 (2000) (noting Supreme Court Justices’ interest in reputation); Schauer, supra note __, at

627-31 (outlining “the effect of reputation” upon judges).

do the great bulk of the work in trying, briefing, researching, or investigating cases. When the

system is working properly the judges sit back and decide cases based on the legal and factual

work of the lawyers. I’ve noted before how this aspect of the judicial incentive structure has led

directly to higher barriers to entry, including the requirement of three years of law school and an

ever more difficult bar exam – because judges and current lawyers both profit when entry

tightens.

21

On a more basic level, most judges probably do not want to face a courtroom of

disgruntled lawyers on a regular basis, simply because of their ongoing, working relationship.

The above factors consider the many conscious reasons for judges to favor lawyers. The

subconscious reasons, however, are at least as important. Here the work of the new

institutionalists is particularly instructive. The “new institutionalism” defines institutions

broadly as “formal and informal rules that constrain individual behavior and shape human

interaction; institutional environment varies with a person’s position in society.”

22

Under this

definition institutions are groups joined by constraining and defining behaviors and thought

patterns.

23

Judges, as a defined group and “institution,” respond to the world, and particularly to judicial

decisions, as lawyers.

24

Legal thinking itself is a powerful and constraining institution.

25

The

goal of American law school, to teach our students to “think like a lawyer,” is thus quite explicit

in institutionalizing the process of legal analysis.

26

Judges have had the transformative

experiences of law school and practice, and approach the world in a very specific way.

27

Most judges are also likely to be individuals who thrived under the written and unwritten rules of

the legal world. Judges thus approach their work with a prescribed set of heuristics, behaviors,

and notions about the world. These cognitive institutions are precisely why they succeeded as

21 Lawyers profit because of decreased competition and judges profit because the lawyers that appear before them

are better qualified. See Barton, Institutional Analysis, supra note __, at 1189-92.

22 Thrainn Eggertsson, A Note on the Economics of Institutions, in EMPIRICAL STUDIES IN INSTITUTIONAL CHANGE

6, 7 (Lee J. Alston et al. eds, 1996) (emphasis in original).

23 Institutions are a response to transaction costs, and “provide a basis for action in a world that would otherwise be

characterized by pervasive ignorance and uncertainty.” MALCOLM RUTHERFORD, INSTITUTIONS IN ECONOMICS: THE

NEW AND THE OLD INSTITUTIONALISM 81 (1994). Douglass North, in particular, led the study of human institutions

as a palliative for transaction costs. See DOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE AND

ECONOMIC PERFORMANCE 27 (1990) (“My theory of institutions is constructed from a theory of human behavior

combined with a theory of the costs of transacting.”).

24 See Charles W. Wolfram, Toward a History of the Legalization Of American Legal Ethics-II The Modern Era, 15

Geo. J. Legal Ethics 205, 211 (2002) (“[I]n both England and America, there has never been any significant

difference between judges and lawyers in their background, training, mutual set of expectations about the nature of

the work that each would perform, professional ambitions, or professional culture.”).

25 Cf. Lynn M. Lopucki, Legal Culture, Legal Strategy, and the Law in Lawyers’ Heads, 90 NW. U. L. REV. 1498,

1501-2 (1999) (“Law is practiced mostly in communities. Those communities forge shared mental models of the

law and process cases principally in accord with them.”).

26 See ANTHONY G. AMSTERDAM & JEROME BRUNER, MINDING THE LAW 3 (2000) (“[T]he ways of lawyers and

judges and students of the law are specialized ways, often so ostentatious in their specialization as to suggest the

esoteric flimflam of a jealous guild.”).

27 See Paul J. Dimaggio & Walter W. Powell, The Iron Cage Revisited: Institutional Isomorphism and Collective

Rationality in Organizational Fields, in THE NEW INSTITUTIONALISM IN ORGANIZATIONAL ANALYSIS, supra note

__, at 63, 71 (“[I]ndividuals in an organizational field undergo anticipatory socialization to common expectations

about their personal behavior, appropriate style of dress, organizational vocabularies, and standard methods of

speaking, joking, or addressing others.”).

lawyers, and why they are valued as judges. Nevertheless, these same factors lead judges to

over-empathize with lawyers.

28

On a subconscious level, when judges face a question that will

impact the legal profession judges naturally react in terms of how it will affect “us” more than

“them.”

Thus, as a matter of theory, the lawyer-judge hypothesis seems like a natural fit. Nevertheless,

lawyers and law professors have had a long-standing blind spot when it comes to judges. We

tend to believe that judges are independent adjudicators of the law who disregard their personal

preferences and proclivities when they decide cases. Because of this blind spot theorists have

tended to look at the effect of judicial incentives and heuristics around the edges of

jurisprudence, looking for evidence of self-interest in judicial short cuts, or administrative

duties.

29

The lawyer-judge hypothesis, by contrast, proposes evidence of jurisprudential self-

interest: areas of the law where judicial preferences and self-interest actually lead to concrete and

otherwise inexplicable results.

II.

Lawyer Regulation

The necessary starting point for consideration of the lawyer-judge hypothesis is the judicial role

in creating and maintaining our system of lawyer self-regulation, because the fruits of that self-

regulation underlie many of the other examples of the lawyer-judge hypothesis. Since at least

The Wealth of Nations economists have theorized that professional self-regulation tends to

benefit the profession itself.

30

Virtually every occupational license and regulatory scheme from -

- barbers’ to doctors’ -- have been dissected to show the underlying self-interest involved.

31

I

have made a small cottage industry over the self-interested nature of lawyer regulation and what

should be done about it.

32

28 Consider also Lawrence Baum’s discussion of fundamental attribution error: “Some psychologists have argued

that the situations in which individuals act have a more critical impact on behavior, and intrinsic traits of individuals

less, than most people realize. Indeed, the tendency to give undue weight to intrinsic traits has been labeled the

‘fundamental attribution error’.” LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR 33-34 (1997). Baum thus

concludes that the nature of a judge’s practice and training has a significant effect upon the judge’s goals and

thought processes. See id.

29 See Bainbridge & Gulati, supra note __ (noting judicial short-cuts in securities fraud litigation); CHRISTOPHER E.

SMITH, JUDICIAL SELF-INTEREST: FEDERAL JUDGES AND COURT ADMINISTRATION (1995).

30 The Wealth of Nations has a lengthy chapter describing the dangers of the guild system and other early examples

of self-regulation. The most famous quote is “[p]eople of the same trade seldom meet together, even for merriment

or diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”

ADAM SMITH, THE WEALTH OF NATIONS 126-52 (Prometheus Books 1991) (1776).

31 See, e.g. Walter Gellhorn, The Abuse of Occupational Licensing, 44 CHI. L. REV. 6 (1976).

32 I addressed this subject in a trio of law review articles. Benjamin H. Barton, Why do We Regulate Lawyers?: An

Economic Analysis of the Justifications for Entry and Conduct Regulation, 33 ARIZ. ST. L. J. 429 (2001) (hereinafter

Justifications) laid out the case that a great deal of lawyer regulation could only be explained as a result of lawyer

self-interest. In Benjamin H. Barton, An Institutional Analysis of Lawyer Regulation – Who Should Control Lawyer

Regulation, Courts, Legislatures, or the Market?, 33 GA. L. REV. 1167 (2003) (hereinafter Institutional Analysis) I

argued that state supreme courts were largely at fault for the regulatory failure because they had ceded almost

complete control of lawyer regulation to bar associations and lawyers themselves. Lastly, in Benjamin H. Barton,

the ABA, the Rules, and Professionalism: The Mechanics of Self-Defeat and a Call for a Return to the Ethical,

Moral, and Practical Approach of the Canons, 83 N.C. L. REV. 411 (2005) I argued that the regulations would work

better if we abandoned our current obsession with black letter rules and returned to the common law approach of the

Canons of Legal Ethics.

The creation and maintenance of the unique self-regulatory apparatus of the American legal

profession speaks volumes about the relationship of the bench and bar. The first thing to note is

that state supreme courts, and not state legislatures, govern the regulation of lawyers in all fifty

states.

33

Thus lawyers have the only true claim to professional self-regulation: from top to

bottom they are governed by lawyers. Predictably, this control has led to “a degree of self-

regulation far beyond either the reality or even the expectations of any other professional

group.”

34

The hows and whys of this self-regulation offer a unique insight into judicial support for the

legal profession. It’s important to note that it was not always thus. As of the mid-nineteenth

century state legislatures set the general requirements for bar admission and district courts

generally governed the administration of admissions.

35

Bar associations were small or non-

existent.

36

From the late 19

th

century forward bar associations reformed, and state supreme court

control over lawyer regulation eventually became the rule in all 50 states.

37

The jurisprudential basis for this move was the state supreme court claim of an “inherent

authority” to regulate the practice of law as an outgrowth of the constitutional separation of

powers between the legislative and judicial branches.

38

Using this inherent judicial authority

many state supreme courts barred state legislatures from regulating lawyers.

39

The state supreme courts’ “inherent authority” over lawyer regulation is a curious, yet under-

theorized doctrine. Essentially state supreme courts hold that state constitutions’ creation of a

judicial branch presupposes certain uniquely “judicial” powers. These powers range from

rulemaking authority to the regulation of lawyers, and in some cases, to judicial funding

demands.

40

33 See Barton, Institutional analysis, supra note __, at 1171; AMERICAN BAR ASSOCIATION SECTION OF LEGAL

EDUCATION AND ADMISSIONS TO THE BAR, LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT – AN

EDUCATIONAL CONTINUUM 116 (1992) (“[J]udicial regulation of all lawyers is a principle firmly established in

every state. Today the highest courts of the several states are the gatekeepers to the profession both as to

competency and as to character and fitness.”).

34 Nancy J. Moore, The Usefulness of Ethical Codes, 1989 ANN. SURV. AM. L. 7, 14-16 (1989); Susan A. Martyn,

Lawyer Competence and Lawyer Discipline: Beyond the Bar?, 69 GEO. L.J. 705, 707 (1981) (“Thus, unlike other

professionals, who are supervised by state regulatory agencies, lawyers remain a virtually self-regulated

profession.”).

35 See Thomas W. Alpert, The Inherent Power of the Courts to Regulate the Practice of Law: An Historical

Analysis, 32 BUFF. L. REV. 525, 533-36 (1982) (stating that in the majority of states in the mid-nineteenth century

courts “were content to consider individual cases and let the legislature set general rules”); JAMES WILLARD HURST,

THE GROWTH OF AMERICAN LAW: THE LAW MAKERS 278-79 (1950) (“From colonial days on, statutes set down at

least the general form of requirements for admissions to the bar.”).

36 See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 562 (1973).

37 See Barton, Mechanics of Self-Defeat, supra note __, at 425-36.

38 See Alpert, supra note __, at 536-51 (delineating the history of courts claiming an inherent power to regulate

lawyers); In re Nenno, 472 A.2d 815, 819 (Del. 1983) (noting that the Delaware Supreme Court “alone, has the

responsibility for” lawyer regulation and stating that “principle is immutable”).

39 See Charles W. Wolfram, Lawyer Turf and Lawyer Regulation – The Role of the Inherent Powers Doctrine, 12 U.

ARK. LITTLE ROCK L.J. 1, 4-16 (1989-90).

40 CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 22-32 (1986) offers the most comprehensive overview. See

also Petition of New Hampshire Bar Assoc., 855 A.2d 450 (N.H. 2004). For a description of the funding issues, see

The main authority on these cases, Professor Charles Wolfram, describes inherent authority

doctrine as “a flat-earth concept of separation of powers” and “almost laughably wooden and ill-

defended.”

41

It does seem odd that judges would not at least share these regulatory powers, if

not take a clear back seat to legislatures, who regulate every other American profession.

Nevertheless, many state supreme courts (with strong bar association support) have claimed sole

authority over lawyer regulation. Moreover, because the inherent authority is claimed as a result

of state constitutional law, judicial control over the legal profession can only be challenged by a

change in court precedent or a constitutional amendment.

42

The results of this inherent authority over lawyer regulation have been predictable. Courts have

used their inherent authority to advantage lawyers in a bevy of ways. Some of the uses have

been particularly protectionist, ranging from aggressive sua sponte prosecution of the

unauthorized practice of law

43

to the creation of mandatory fee scales.

44

Nevertheless, the use of inherent authority that has most benefited lawyers is the creation of

unified bars in the majority of American states. The bar is unified (a.k.a. integrated) in 36 states

and the District of Columbia.

45

In these states a lawyer must be a member of the state bar

association to practice law.

46

This mandatory connection between a professional license and

membership in a professional organization is unique to the legal profession.

47

Like a “closed

shop” in labor law, this requirement offers these bar associations unique opportunities for

funding, lobbying, and overall group power.

The history of bar unification is particularly instructive. The first states were unified by statute,

but in 1939 Oklahoma became the first state supreme court to unify by court order.

48

Following

Helen Hershkoff, State Courts and the “Passive Virtues:” Rethinking the Judicial Function, 114 HARV. L. REV.

1833, 1873-74 (2001).

41 Wolfram, supra note __, at 212-13.

42 Interestingly, the Arizona legislature has initiated a series of constitutional amendments to curtail the scope of

“inherent authority” in Arizona. See Ted Schneyer, Who Should Define Arizona's Corporate Attorney-Client

Privilege?: Asserting Judicial Independence Through the Power to Regulate the Practice of Law, 48 ARIZ. L. REV.

419, 419-20 (2006).

43 See Henry M. Dowling, the Inherent Power of the Judiciary, 21 ABA J. 635, 636-37 (1935) (stating that courts

had independently defined the practice of law and pursued unauthorized legal practitioners).

44 See, e.g., Lathrop v. Donahue, 102 N.W.2d 404, 413-14 (Wis. 1960) (“The State Bar recently adopted a

recommended minimum fee schedule covering legal services. The present economic plight of the lawyers in this

country is one which has disturbed the bench and the bar. Able young men who otherwise might be attracted to

entering the legal profession are being discouraged not to because of this.”).

45 See Terry Radtke, The Last Stage of Professionalizing the Bar: The Wisconsin Bar Integration Movement, 1934-

1956, 81 MARQ. L. REV. 1001, 1001 (1998).

46 See DAYTON MCKEAN, THE INTEGRATED BAR 21-23 (1963); Theodore J. Schneyer, The Incoherence of the

Unified Bar Concept: Generalizing from the Wisconsin Case, 1983 AM. B. FOUND. R.J. 1 (1983).

47 See Radtke, supra note __, at 1001.

48 See In re Integration of the State Bar of Oklahoma, 185 Okla. 505 (Okla. 1939). Interestingly, the Supreme Court

actually repealed an earlier state statute organizing the unified bar. The court held that the legislature lacked the

constitutional power to unify the bar, invalidated the statute, and then ordered bar unification under its own inherent

authority. See id.

Oklahoma, the remaining states unified by court action.

49

This granted the legal profession a

court-created bar structure (an exceptional lobbying and financial advantage) ready, willing, and

anxious to self-regulate.

Naturally, state supreme court justices have generally granted these bar associations much of the

court’s regulatory power.

50

Even in states without a unified bar state supreme courts delegate

their regulatory authority to lawyers and bar associations.

51

So from the state supreme court

justices on down lawyers are regulated only by lawyers.

As a general rule foxes make poor custodians of henhouses, and I have argued at length

elsewhere that self-regulation has led inexorably to self-interested regulations.

52

There are a

number of irrefutable examples from the ABA Rules, which include regulations restricting

competition through stringent rules on advertising,

53

client solicitation,

54

client referrals,

55

and

unauthorized practice in another jurisdiction or assisting in unauthorized practice.

56

These

regulations are defended as a hedge against creeping commercialization,

57

but critics see naked

restraints of trade.

58

My favorite example is the requirements for entry to the practice of law. Raising entry barriers

has been the sine qua non of bar associations and lawyer lobbying.

59

Since state supreme courts

have controlled lawyer regulation entry barriers have evolved from virtual non-existenceto the

49 “The process of obtaining integration by court order has proven to be so much easier than lobbying a bill through

a legislature against the opposition of other professional associations, perhaps only to meet a governor’s veto, that

the use of statutes has been all but abandoned since the Oklahoma decision.” See MCKEAN, SUPRA note __, at 49. I

love this quote (from a source generally sanguine about unified bars). To paraphrase: that darn legislative process is

such a hassle, why bother? Let’s go get the state supreme courts to do this for us.

50 See Barton, Justifications, supra note __, at 463-65.

51 For example, state supreme courts have largely ceded the task of drafting rules of conduct to the ABA, See

AMERICAN BAR ASSOCIATION, LAWYERS MANUAL ON PROFESSIONAL CONDUCT 01:3 to 01:63 (2000); and

enforcing those rules to bar disciplinary authorities or separate administrative agencies controlled by state supreme

courts and staffed by lawyers. See Christopher D. Kratovil, Separating Disability from Discipline: The ADA and

Bar Discipline, 78 TEX. L. REV. 993, 995-96 (2000) (noting that state supreme courts have largely delegated the

duty of enforcing conduct regulation to state bar associations).

52 See Barton, Economic Analysis, supra note __; Barton, Institutional Analysis, supra note __.

53 See MODEL RULES OF PROFESSIONAL CONDUCT Rules 7.1, 7.2, 7.3 (2006); MODEL CODE OF PROFESSIONAL

RESPONSIBILITY DR 2-101 (1983).

54 See MODEL RULES OF PROFESSIONAL CONDUCT Rules 7.1, 7.3 (2006); MODEL CODE OF PROFESSIONAL

RESPONSIBILITY DR 2-101, DR 2-104 (1983).

55 See MODEL RULES OF PROFESSIONAL CONDUCT Rules 7.2 (2006); MODEL CODE OF PROFESSIONAL

RESPONSIBILITY DR 2-101, DR 2-103(B) (1983).

56 See MODEL RULES OF PROFESSIONAL CONDUCT Rules 5.5 (1998); MODEL CODE OF PROFESSIONAL

RESPONSIBILITY DR 3-101 (1983).

57 See William E. Hornsby, Jr. & Kurt Schimmel, Regulating Lawyer Advertising: Public Images and the

Irresistible Aristotelian Impulse, 9 GEO. J. LEG. ETHICS 325, 326 & n.4 (1995).

58 See Barton, Economic Analysis, supra note __, at 455-56; Deborah L. Rhode, Why the ABA Bothers: A

Functional Perspective on Professional Codes, 59 TEX. L. REV. 689, 692-706 (1981).

59 See 29 A.B.A. REP. 601-02 (1906) (proposing standards of ethical conduct to battle a new breed of lawyers who

“believe themselves immune, the good or bad esteem of their co-laborers is nothing to them provided their itching

fingers are not thereby stayed in their eager quest for lucre”); EDSON R. SUNDERLAND, HISTORY OF THE AMERICAN

BAR ASSOCIATION AND ITS WORK 72-75 (1953) (discerning that legal education and admission to the bar “received

more attention” from the ABA during its early years “than any other” issue).

complex system of today.

60

Lawyers, of course, have an excellent reason to favor higher entry

standards: they decrease the supply of legal services and raise the price for those services.

Moreover, the higher prices are a windfall for the current members of the profession lobbying for

more difficult standards; they enjoy the higher prices without having to meet the new, higher

standards.

61

While rising entry standards have multiple benefits to lawyers, there is little

evidence that the benefit to consumers is equivalent to the higher cost of services.

62

It is also interesting to contrast the interests of bar associations and judges in entry barriers with

more direct means of controlling errant lawyers, i.e. disbarment or court sanctions. The

enforcement of the Rules of Professional Conduct has been notoriously lax.

63

Likewise, courts

have been quite reticent to impose sanctions of any kind on shoddy lawyering in their courts.

64

This reticence is puzzling given that greater enforcement might actually improve the

administration of justice and the ease of any particular judge’s job. In this case judicial

sympathy for lawyers apparently trumps any individual interest in sanctions.

In sum, state supreme courts have taken a remarkably expansive view of the separation of

powers and their “inherent authority” to gain control over lawyer regulation. These cases arise

as a matter of state constitutional law, but are best understood as example of judicial sympathy

and empathy for bar associations and the legal profession as a whole.

III.

Lawyer-Client Privilege

60 See KERMIT L. HALL, THE MAGIC MIRROR: LAW IN AMERICAN HISTORY 212 (1989) (“Beginning in the 1830s,

local authorities lost control over the certification of lawyers to state government and . . . it was not until the post-

Civil War era that professionalization of law practice surged.”). Bar entry is now centrally controlled in every

United States jurisdiction by sizeable bureaucracies. See Bar Admissions Offices, at

http://www.ncbex.org/Links/AdminOff.html (last visited Jan. 15, 2007).

61 Generally, current practitioners are grandfathered (or grandmothered) in under new, more stringent entry

regulations. See Simon Rottenberg, Introduction, in OCCUPATIONAL LICENSURE 1, 5 (Simon Rottenberg ed., 1980)

Barton, supra note __, at 441-43. The bar exam has continued to become more difficult, and recently passage rates

have declined substantially. See Deborah J. Merritt, et al., Raising the Bar: A Social Science Critique of Recent

Increases to Passing Scores on the Bar Exam, 69 U. CINC. L. REV. 929, 929 (2001). This explains why every

complaint about current practitioners is solved by a burden upon future practitioners. Consider the growing

utilization of the Multistate Professional Responsibility Exam (“MPRE”) as a response to claims of unethical

lawyers, or the drive to establish the bar examination and legal education as a response to perceived lawyer

incompetence. If the worry was over currently incompetent practitioners, raising entry barriers for future lawyers

would do little to assist with the immediate problem.

62 See Barton, Economic Analysis, supra note __, at 445-48.

63 See Deborah L. Rhode, The Profession and the Public Interest, 54 STAN. L. REV. 1501, 1512 (2002) (citing

examples of lax lawyer discipline); Fred C. Zacharias, What Lawyers Do When Nobody’s Watching: Legal

Advertising as a Case Study of the Impact of Underenforced Professional Rules, 87 IOWA L. REV. 971 (2002)

(describing underenforcement and its results in the area of lawyer advertising).

64 Cf. Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31

VAND. L. REV. 1295, 1343 (1978) (pointing out that judicial reticence to sanction discovery abuses is likely a result

of “judges’ understanding [as] former lawyers”). Further, despite seeing a great deal of shoddy lawyering, judges

rarely make complaints to disciplinary authorities. See AMERICAN BAR ASSOCIATION, STANDING COMMITTEE ON

PROFESSIONAL DISCIPLINE, THE JUDICIAL RESPONSE TO LAWYER MISCONDUCT iii (1984) (citing research showing

that “judges represent a minority of the complaints, even against easily detected serious misconduct directly

affecting the administration of justice”).

One of the oldest and most ingrained examples of the lawyer-judge Hypothesis is the lawyer-

client privilege. I seek to demonstrate three things. First, the attorney client privilege has been

accorded a unique and vaunted position among all professional privileges. Second, the primacy

of the attorney-client privilege -- in comparison to other privileges like those accorded

physicians, spouses, or clergy -- cannot be justified solely jurisprudentially. Instead, the

difference is most likely the inherent sympathy that judges have had for the importance of the

attorney-client relationship. Third, the special treatment of the attorney-client privilege, in

conjunction with rules of professional conduct requiring confidentiality, make legal services

much more attractive to clients.

The attorney client privilege is a rule of evidence that protects most attorney-client

communications from compelled disclosure. The classic statement of the privilege comes from

Wigmore’s Evidence. The privilege applies “(1) [w]here legal advice of any kind is sought (2)

from a professional legal adviser in his capacity as such, (3) the communications relating to that

purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected

(7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.”

65

Courts have long treated the attorney-client privilege as the flagship evidentiary privilege.

66

Courts frequently “wax poetic”

67

about this “most sacred of all legally recognized privileges.”

68

It holds a “special position”

69

as the “oldest and most venerated of the common law privileges of

confidential communications.”

70

It “serves a salutary and important purpose: to ‘encourage full

and frank communication between attorneys and their clients and thereby promote broader public

interests in the observance of law and administration of justice.’"

71

“Thus, it is reasonable to expect that a conversation with an attorney would be private.”

72

It is a

“strong and absolute privilege”

73

(barring waiver and other limited exceptions), and must

“receive unceasing protection.”

74

It “seeks to protect ‘a relationship that is a mainstay of our

system of justice.’”

75

The courts protect the attorney-client privilege by more than just rhetoric, however. A

comparison of the treatment of lawyers and other professionals by the courts is quite instructive.

65 Cavallaro v. U.S., 284 F.3d 236, 45 (1st Cir. 2002) (quoting 8 JOHN HENRY WIGMORE, EVIDENCE § 2292, at 554

(McNaughton rev. 1961)).

66 Please forgive the upcoming “Zagat’s” approach to case law. The language itself is so telling short quotes speak

volumes.

67 EDWARD J. IMWINKELRIED, THE NEW WIGMORE: A TREATISE ON EVIDENCE, EVIDENTIARY PRIVILEGES § 6.2.4

(2002).

68 In re Grand Jury Proceedings, 162 F.3d 554, 556-57 (9th Cir. 1998).

69 In re Allen, 106 F.3d 582, 600 (4th Cir. 1997).

70 U.S. v. Edwards, 303 F.3d 606, 618 (2002) (citing Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981)).

71 Southern Scrap Material Co. v. Fleming, 2003 WL 21783318 (E.D. La. July 30, 2003) (quoting Swindler &

Berlin v. United States, 524 U.S. 399, 403 (1998)).

72 Sherbrooke v. City of Pelican Rapids, 2006 WL 3227783 (D.Minn., November 7, 2006) (citing Lanza v. New

York, 370 U.S. 139, 143-44 (1962)).

73 Fru-Con Const. Corp. v. Sacramento Mun. Utility Dist., 2006 WL 2255538 (E.D.Cal., Aug 07, 2006).

74 Lanza v. New York, 370 U.S. 139, 143-44 (1962).

75 Gould, Larson, Bennet, Wells and McDonnell, P.C. v. Panico, 869 A.2d 653, 656 (Conn. 2005) (quoting Clute v.

Davenport Co., 118 F.R.D. 312, 314 (D.Conn.1988)).

Of the three longest standing “professions,” lawyers are the only one to receive continuous

common law protection, and as a result lawyers have been, and are still, in a much better position

than their compatriots.

There has never been a common law physician-patient privilege in England or the United

States.

76

While the attorney-client privilege was originally recognized during the reign of

Elizabeth I and protected as a “point of honor” for lawyers,

77

the physician-patient privilege was

famously rejected in 1776. The doctor at issue refused to disclose “a confidential trust . . .

consistent with [his] professional honour.” Lord Mansfield replied: “If a surgeon was voluntarily

to reveal these secrets, to be sure he would be guilty of a breach of honour . . . but, to give that

information in a court of justice, which by the law of the land he is bound to do, will never be

imputed to him as any indiscretion whatsoever” and required disclosure.

78

In fact, the protection of physician-patient communications in this country is as a result of state

statutes.

79

This makes the privilege much less powerful than the attorney-client privilege for

several reasons. First, there is no statutory protection whatsoever in approximately one fifth of

the states.

80

Second, even where the protections exist, the privilege suffers “significant

variations and numerous exceptions.”

81

Third, the fact that the privilege was not recognized at

common law means it is generally inapplicable in federal courts applying federal law.

82

For a particularly blunt comparison between the attorney-client and physician-patient privileges

it is helpful to look where the rubber hits the road: the wisdom of trial attorneys. In a Trial

magazine list of testimonial objections the privileges are summarized as follows: “All states

recognize the attorney-client privilege. . . . On the other hand, the physician-patient privilege is

weak.”

83

This warning is echoed in evidence texts that suggest that doctors or psychiatrists hired

76 CLINTON DEWITT, PRIVILEGED COMMUNICATIONS BETWEEN PHYSICIAN AND PATIENT 9-14 (1958)

(“Notwithstanding the fact that, since the sixteenth century, the relationship of attorney and client had been

sedulously protected by a privilege of non-disclosure, the courts of England resolutely refused to extend a similar

privilege to members of the medical profession.”).

77 See 8 J. WIGMORE, supra note __, at § 2290

78 Daniel W. Shuman, The Origins of the Physician-Patient Privilege and Professional Secret, 39 SW. L.J. 661, 671

(quoting Rex. v. Duchess of Kingston, 20 How. St. Tr. 355, 572-73 (1776)).

79 1 McCormick on Evidence § 98, at 397-99 (John W. Strong ed., 5th ed. 1999). One exception is the Supreme

Court’s recognition of a psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S. 1 (1998).

80 See ARTHUR BEST, WIGMORE ON EVIDENCE 2004-2 Cumulative Supplement § 2380, at 1336-49 (2005) (listing

states and statutes).

81 David Weissbrodt, et al., Piercing the Confidentiality Veil: Physician Testimony in International Criminal Trials

Against Perpetrators of Torture, 15 MINN. J. INT'L L. 43, 61 (2006). For example, many statutes state a mandatory

duty to report child abuse regardless of confidentiality. See Robin A. Rosenkrantz, Note, Rejecting ‘Hear No Evil

Speak No Evil: Expanding the Attorney’s Role in Child Abuse Reporting, 8 GEO. J. LEG. ETHICS 327 (1995) (arguing

that mandatory reporting should apply to lawyers too); see also Ariz. Dep't of Econ. Sec. v. O'Neil, 901 P.2d 1226,

1227 (Ariz. Ct. App. 1995) (discussing the state statute that "provides that such privileges as the physician-patient

and husband-wife privilege are unavailable in cases involving dependent children, but specifically exempts the

attorney-client privilege").

82 Jaffee, 518 U.S. at 10 (distinguishing doctors from psychotherapists, and granting only psychotherapists a

privilege in federal courts); Kenneth S. Broun, The Medical Privilege in the Federal Courts – Should it Matter

Whether Your Ego or Your Elbow Hurts?, 38 LOY. L.A. L. REV. 657 (2004) (arguing for creation of a federal

physician-patient privilege).

83 Ashley Saunders Lipton, Know Your Testimonial Objections, July, 2005. Humorously, the other privileges do

not fare much better: “The psychotherapist-patient privilege (which includes counselors, psychologists, and

as experts for trial should examine their patients as part of the legal team so that the more

stringent protections of the attorney-client and work product privileges attaches to their work.

84

The clergy-penitent privilege has a similar history. Before the reformation there was a priest-

penitent privilege that protected priests from testifying.

85

Following the reformation, however,

English courts repudiated the privilege, and American courts followed suit.

86

Similar to the

physician-patient privilege, the clergy privilege has grown primarily as a result of state statutes.

87

Furthermore, although the clergy-penitent privilege is recognized in all 50 states its statutory

basis differs state by state, and it is subject to many more exceptions than the attorney-client

privilege.

88

In comparison to accountants, however, doctors and clergy get off easy. There is no federal

accountant-client privilege.

89

Likewise, most jurisdictions have refused to recognize an

accountant-client privilege as a matter of statutory or common law.

90

Nevertheless, comparing the justifications for these various privileges with those that historically

underpin the attorney-client privilege does not offer a strong argument for the great variation in

treatment.

91

Courts and commentators have generally used a utilitarian approach to defending

the attorney-client privilege, arguing that the societal benefits outweigh the costs. As the

Supreme Court has stated, the privilege’s “purpose is to encourage full and frank communication

between attorneys and their clients and thereby promote broader public interests in the

observance of law and the administration of justice. The privilege recognizes that sound legal

therapists) is generally stronger than the physician-patient privilege. The parent-child and accountant-client

privileges are very weak. The journalist privilege is also subject to extreme variation.” Id.

84 See EDWARD J. IMWINKELRIED, EVIDENTIARY FOUNDATIONS 291, 302 (6th Ed., 2005).

85 See Mary H. Mitchell, Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and

Free Exercise of Religion, 71 MINN. L. REV. 723, 735-36 (1987).

86 See John J. Montone, Note, In Search of Forgiveness: State v. Szemple and the Priest-Penitent Privilege in New

Jersey, 48 RUTGERS L. REV. 263, 267-69 (1995).

87 There was an early case that recognized the privilege under the First Amendment Free Exercise Clause, but since

that case the application has been through statutes. See Jacob M. Yellin, The History and Current Status of the

Clergy-Penitent Privilege, 23 SANTA CLARA L. REV. 95, 106-10 (1983).

88 See Montone, supra note __, at 283-86 (canvassing various state approaches to clergy-penitent privilege).

89 See Couch v. United States, 409 U.S. 322, 335 (1973) (“[W]e note that no confidential accountant-client privilege

exists under federal law, and no state created privilege has been recognized in federal cases.”);

Thomas J. Molony, Note, Is the Supreme Court Ready to Recognize Another Privilege? An Examination of the

Accountant-Client Privilege in the Aftermath of Jaffee v. Redmond, 55 WASH. & LEE L. REV. 247 (1998) (arguing

for a federal accountant-client privilege).

90 See EDWARD J. IMWINKELRIED, THE NEW WIGMORE: A TREATISE ON EVIDENCE, EVIDENTIARY PRIVILEGES §

6.2.4 (2002). Journalists have also had a hard time establishing a privilege for sources. See Jeffrey S. Nestler, The

Underprivileged Profession: The Case for Supreme Court Recognition of the Journalist's Privilege, 154 U. PA. L.

REV. 201 (2005).

91 The justifications for the attorney client privilege have been divided into two broad categories, utilitarian (or

instrumentalist) and non-utilitarian (or humanistic). The utilitarian approach balances the societal costs and benefits

of any privilege; the non-utilitarian approach looks at fundamental values, like privacy, and decides if the privilege

is consistent with those values. See IMWINKELRIED, supra note __, at § 6.2.4 (dividing justifications into

“instrumental” and “humanistic”); Attorney-Client Privilege, 98 HARV. L. REV. 1501, 1502-4 (1985) (dividing

justifications into “utilitarian” and “non-utilitarian”). This Article will focus on the utilitarian approach, because it

has been dominant among courts and commentators.

advice or advocacy serves public ends and that such advice or advocacy depends upon the

lawyer being fully informed by the client.”

92

Some of the most famous historical formulations of this utilitarian justification are particularly

telling in terms of the lawyer-judge hypothesis. Annesley v. Earl of Anglesea,

93

quoted in

Wigmore’s Evidence, specifically references the business interests of lawyers in the privilege:

“all people and all courts have looked upon that confidence between the party and attorney to be

so great that it would be destructive to all business if attornies [sic] were to disclose the business

of their clients.”

94

Other early courts explicitly recognized the judiciary’s need for a fully functioning cadre of

lawyers as a justification: the privilege is necessary “out of regard to the interests of justice,

which cannot be upholden, and to the administration of justice, which cannot go on without the

aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting

rights and obligations which form the subject of all judicial proceedings.”

95

Thus the utilitarian

defense includes two key aspects of the lawyer-judge hypothesis, an implied concern for the

welfare and business of lawyers, and concern over the ease of the administration of justice.

I was always struck by the importance placed on the attorney-client relationship, and the relative

disrespect paid to the doctors and patients, and other professional relationships. Assuming that it

is true that candor between attorneys and clients is so critical that we should protect it in court, is

candor between doctors and patients really less important? Just in terms of the societal interests

involved I would think that health frequently (if not always) trumps legal advice in importance.

Similarly, the relationship between a worshipper and her clergy-person seems equally worthy of

societal support and care.

96

The physician-patient privilege (among others) was scorned at common law. Wigmore’s

Evidence offers a particularly scathing rebuke. Wigmore applied a four part test to balance the

costs and benefits of all privileges

97

and found that only the three privileges that had been

recognized at common law -- husband-wife, priest-penitent, and attorney-client -- conformed to

92 See Upjohn Co., 449 U.S. at 389.

93 17 How. St. Tr. 1129 (Ex. 1743).

94 Annesley v. Earl of Anglesea, 17 How. St. Tr. 1129, 1225, 1241 (Ex. 1743) (quoted in 8 WIGMORE, supra note

__, at § 2291, at 546). Later commentators have noted that the business of law is embedded in the utilitarian

justification. See Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 358 (1998) (arguing that

“clients may not employ attorneys, or at least not provide them with adequate information, unless all aspects of the

attorney-client relationship remain secret”).

95 Greenough v. Gaskell, 39 Eng. Rep. 618, 621 (Ch. 1833).

96 Furthermore, clergy have a much stronger constitutional argument for a privilege than lawyers do. See Ronald J.

Colombo, Note, Forgive Us Our Sins: The Inadequacies of the Clergy-Penitent Privilege, 73 N.Y.U. L. REV. 225

(1998).

97 Wigmore asked a four part question before approving of any privilege: (1) The communications must originate in

a confidence that they will not be disclosed. (2) This element of confidentiality must be essential to the full and

satisfactory maintenance of the relation between the parties. (3) The relation must be one that in the opinion of the

community ought to be sedulously fostered. (4) The injury that would inure to the relation by the disclosure must be

greater than the benefit thereby gained for the correct disposal of litigation. 8 WIGMORE ON EVIDENCE, supra note

__, § 2285, at 527.

all four factors.

98

Wigmore argued vociferously against the physician-patient privilege.

Interestingly, one of his main arguments was that doctors did not really need the privilege,

because people would consult doctors in all candor regardless of any privilege.

99

Moreover,

Wigmore made much of the fact that states that had a physician-patient privilege, such as New

York, reported no difference in usage of doctors from non-privilege states.

100

It is also humorous

that Wigmore carps that “[t]he real support for the privilege seems to be mainly the weight of

professional medical opinion pressing upon the legislature.”

101

Lastly, the physician privilege

has been criticized as fostering fraud.

102

The same questions that were presented in the doctor-patient scenario fit for lawyers and clients:

would lawyer-client communication truly be crippled without the privilege? Are many clients

actually fully forthcoming with their lawyers regardless of the privilege? I do not ask these

questions to argue for the abolition or curtailment of the privilege, just to note that the empirical

and theoretical basis for differentiating between lawyers and doctors (or clergy or accountants) is

not nearly as clear as courts have suggested. Instead, when faced with a balancing test between

the importance of a professional relationship and the truth-seeking function, courts repeatedly

chose the truth-seeking function except for a very narrow group of relationships headlined by the

attorney-client relationship. While this choice has been defended on jurisprudential grounds, it is

better explained by the lawyer-judge hypothesis.

It is also worth noting what an exceptional product the attorney-client privilege allows lawyers to

sell to clients. In conjunction with extremely tight professional confidentiality rules and

norms,

103

the attorney-client privilege offers clients protection for almost all disclosures. As

Professor Daniel Fischel has noted the privilege and the ethics rules offer an unbeatable

combination.

104

If you are concerned at all about later confidentiality in court and need someone

to talk to, you would be well advised to choose a lawyer.

On a final note, the very structure of attorney-client disclosure/waiver hints at the privilege’s true

beneficiaries. Generally, any disclosure to a third person outside the confidential relationship

waives the privilege.

105

These rules are particularly stringent for clients: a word about a

98 See 8 WIGMORE ON EVIDENCE, supra note __, § 2285.

99 See 8 WIGMORE ON EVIDENCE, supra note __, § 2380a (arguing that its “ludicrous” to suggest a seriously ill

person would withhold vital information from a doctor out of fear of later exposure in court).

100 See 8 WIGMORE ON EVIDENCE, supra note __, § 2380a. Given the utter lack of empirical data to support

Wigmore’s claims concerning the attorney-client privilege, this complaint is somewhat paradoxical. See Edward J.

Imwinkelried, Questioning the Behavioral Assumption Underlying Wigmorean Absolutism in the Law of Evidentiary

Privileges, 65 U. PITT. L. REV. 145 (2004).

101 See 8 WIGMORE ON EVIDENCE, supra note __, § 2380a. Those darn doctors and their undue influence!

102 See EDWARD W. CLEARY, MCCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE § 105, at 228 (2d ed. 1972)

("More than a century of experience with the statutes has demonstrated that the [physician-patient] privilege in the

main operates not as the shield of privacy but as the protector of fraud. . . . [The privilege] runs against the grain of

justice, truth and fair dealing.").

103 The Rules of Professional Conduct provide extraordinary protections for lawyer’s confidentiality. See ABA

MODEL RULES OF PROFESSIONAL CONDUCT 1.6 (2006).

104 Daniel R. Fischel, Lawyers and Confidentiality, 65 U. CHI. L. REV. 1 (1998). Professor Fischel goes on to build

a powerful case against this iron grip of confidentiality, concluding that “[t]he legal profession, and not society as a

whole, is the primary beneficiary of confidentiality rules.” See id. at 3.

105 “The moment confidence ceases . . . privilege ceases.” In re San Juan Dupont Plaza Hotel Fire Litigation, 859

F.2d 1007 (1st Cir. 1988) (quoting 8 WIGMORE, Supra note __, at § 2311).

privileged matter to a friend or relative, or even a lack of care with privileged materials can

affect a waiver. Two notable exceptions have been made for law firm practice. First, the

privilege is not limited only to lawyers, any agents, secretaries or paralegals are included.

106

Second, in a case of inadvertent disclosure during discovery, privilege may be maintained under

certain circumstances.

107

Last, while courts carefully protect these privileges in most court

actions, we shall see that disclosure is allowed to defend a malpractice action or in a fee

dispute.

108

IV.

Three Sui Generis Supreme Court Cases

Bar Associations have played a bit part in two recent revolutions in American Constitutional law:

the First Amendment’s protection of commercial speech and the reconsideration of the law of

takings. In each of these areas the Supreme Court signaled an aggressive new approach and

followed with a series of cases that generally drift in the direction of increased constitutional

protections for commercial speech and against government takings. In each of these areas small,

but important, exceptions to the general thrust of the law were drawn up specifically for lawyers.

While the Supreme Court offers a series of justifications for these cases, taken in light of the

state of the law as a whole they seem to be classic examples of the lawyer-judge hypothesis.

A.

Ohralik

Bans on lawyer advertising and client solicitation are practically as old as the profession itself.

109

In America lawyer regulators began to systematically bar advertising and client solicitation

around the turn of the century.

110

These bans were a key part of the bar’s professionalization

project, and mirrored anti-competitive regulations in other professions.

111

The bans were

justified as a protection for the unsuspecting public against “ambulance chasers” and other

unscrupulous lawyers.

112

106 See, e.g., United States ex rel. Edney v. Smith, 425 F. Supp. 1038, 1046 (E.D.N.Y. 1976) ("Given the

complexities of modern existence few, if any, lawyers could as a practical matter represent the interests of their

clients without the assistance of a variety of trained legal associates not yet admitted to the bar, clerks, typists,

messengers, and similar aides.").

107 See K.L. Group v. Case, Kay & Lynch, 829 F.2d 909 (9th Cir. 1987) (inadvertent production of privileged letter,

along with some 2,000 other documents during discovery, did not result in waiver of attorney-client privilege); cf.

Transamerica, 573 F.2d at 649-50 (describing IBM’s extensive privilege review procedures as “incredibl[e]” before

holding no waiver).

108 See infra notes __ and accompanying text.

109 See HENRY S. DRINKER, LEGAL ETHICS 23-24 (1953) (reporting the medieval English bar’s informal rules

against advertising and client solicitation).

110 ABA Canons of Legal Ethics 27 and 28 prohibited most forms of attorney advertising and client solicitation.

See A.B.A. Canons of Professional Ethics, Canons 27 and 28 (1908).

111 Cf. Deborah L. Rhode, Why The ABA Bothers: A Functional Perspective on Professional Codes, 59 TEX. L. REV.

689, 702 (1981) ("A principal force animating any occupation's efforts at self-regulation is a desire to minimize

competition from both internal and outside sources.").

112 See Karlin v. Culkin, 162 N.E. 487, 488-89 (N.Y. 1928) (Cardozo, C.J.) (castigating "unscrupulous minority" of

the bar for "[a]mbulance chasing" and other "evil practices").

Regardless of the justifications, the results were clearly anti-competitive. Existing practitioners

(who were the drafters of these rules) were able to charge inflated prices without worrying about

being undercut by competing lawyers advertising or soliciting their clients.

Beginning in the 1970s the Supreme Court began to overturn the most blatant of these anti-

competitive practices.

113

The bulk of this work was accomplished by the nascent First

Amendment commercial speech doctrine. Prior to 1976 commercial speech had not been

protected under the First Amendment.

114

Starting with Virginia Board of Pharmacy the Supreme

Court began a series of cases applying the First Amendment to commercial speech and

advertising.

115

The Court’s second major commercial speech case, Bates v. State Bar of Arizona,

held that the State Bar of Arizona could not ban truthful advertising of prices for routine legal

services.

116

Bates followed Virginia Board of Pharmacy by one year, and at first reading appears compelled

by the reasoning of Virginia Board, a 8-1 decision that truthful advertising of drug prices could

not be banned. Nevertheless, the opinions in Bates itself make clear how hard it was for the

Court to apply the commercial speech doctrine to the legal profession. The Court split 5-4 on the

First Amendment issue, and each of the four dissenters noted the special nature of legal services

and the unwelcome and “profound changes” the decision would bring to the practice of law.

117

A year later the Court decided Ohralik v. Ohio State Bar Association, the first of our lawyer-

judge hypothesis cases. In Ohralik the Court held a ban on in-person client solicitation by

lawyers constitutional.

118

The Court distinguished Bates because of the potential for client abuse

from in person solicitation.

In retrospect, Ohralik is an unusual commercial speech case. Ohralik gives great deference to

the interest of the states in regulating lawyers as officers of the court, and even notes how a ban

on solicitation serves the goal of “true professionalism.”

119

This deference to bar association

regulation has been a moving target for the Court. In the cases where the Court strikes down bar

regulation it tends to reject arguments based on “professionalism” or the public image of

lawyers,

120

but in cases like Ohralik where these regulations are upheld the Court expressly

credits them.

Further, Ohralik is one of the very few cases where the Court upheld a blanket prohibition on

commercial speech because it might sometimes tend towards “fraud, undue influence,

113 For example, Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) held that mandatory fee schedules violated

federal antitrust law.

114 See, e.g., Valentine v. Chrestensen, 316 U.S. 52 (1942) (holding that the First Amendment did not restrain a

government ban of handbills bearing purely commercial advertising).

115 Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976).

116 Bates v. State Bar of Arizona, 433 U.S. 350, 363-85 (1977).

117 Bates, 433 U.S. at 386 (Burger, C.J., dissenting).

118 Ohralik v. Ohio state Bar Ass’n, 436 U.S. 447 (1978).

119 Ohralik, 436 U.S. at 460-61.

120 See Bates, 433 U.S. at 368-72; Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 648 (1985) (holding

that “the State's desire that attorneys maintain their dignity in their communications with the public” is not “an

interest substantial enough to justify the abridgment of their First Amendment rights”).

intimidation . . . and other forms of vexatious conduct.”

121

As a general rule the Court has been

clear that the government can always bar the dissemination of commercial speech that is false,

deceptive, misleading, or that proposes an illegal transaction.

122

Nevertheless, Ohralik does not

ban only false speech. To the contrary, it is precisely the type of “blanket prohibition against

truthful, nonmisleading speech about a lawful product” that the Court reviews with “special

care” and which “rarely survive constitutional review.”

123

In fact, outside of Ohralik and a few

cases from the 1980s that are now widely considered overruled, the Court has not sustained any

other general ban on advertising under the commercial speech doctrine.

124

Moreover, the reasoning of Ohralik has only ever been applied to the legal profession. In

Edenfield v. Fane the Court expressly refused to apply Ohralik to a rule that barred in-person

solicitation by CPAs.

125

The comparison between Edenfeld and Ohralik is stark and particularly

telling. Ohralik was an 8-0 decision where the Court seemed to find it obvious that “the state

interests implicated [were] particularly strong” and that in-person solicitation is dangerous and

harmful to clients and the profession as a whole.

126

Ohralik also accepted the ABA’s “three

broad grounds” of justification for the in-person ban with little comment.

127

In short, the Court

in Ohralik shows a particular sensitivity to the concerns of bar associations and the Court’s

palpable distaste for in-person solicitation by lawyers pervades the entire opinion.

By contrast, the 8-1 Edenfield decision was deeply skeptical of a ban on in-person solicitation for

accountants. While Edenfield recognized the importance of protecting consumer privacy and

discouraging fraudulent solicitation, the Court seemed utterly flummoxed by the assertion that a

ban on in-person solicitation could possibly fit those goals.

128

The Court specifically took the

Florida Board of Accountancy to task for their lack of underlying evidence supporting a claim of

121 Ohralik, 436 U.S. at 462.

122 See Friedman v. Rogers, 440 U.S. 1 (1979) (false and misleading); Pittsburgh Press Co. v. Human Relations

Comm'n, 413 U.S. 376 (1973) (illegal activity).

123 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504 (1996). Consider also In re R.M.J., 455 U.S. at 203,

where the Court seemed to expressly reject the reasoning of Ohralik by stating that “the States may not place an

absolute prohibition on certain types of potentially misleading information ... if the information also may be

presented in a way that is not deceptive.”

124 See, e.g., Posadas de Puerto Rico Association v. Tourism Company of Puerto Rico, 478 U.S. 328 (1986), which

upheld a ban on advertising for casinos because of the potential harm that gambling might cause to consumers and

United States v. Edge Broadcasting Co., 509 U.S. 418 (1993), which allowed a non-lottery state to bar a foreign

state’s lottery advertisements. Both of these cases are widely considered overruled by 44 Liquormart, Inc. v. Rhode

Island, 517 U.S. 484, 516 (1996), which held a ban on liquor advertising unconstitutional. Cf. Eugene Volokh,

Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki, 40 HOUS.

L. REV. 697, 732-40 (2003) (noting that 44 Liquormart overruled Posadas de Puerto Rico and arguing that the

commercial speech doctrine tightened significantly after the 1980s); Arlen W. Langvardt, The Incremental

Strengthening of First Amendment Protection for Commercial Speech: Lessons From Greater New Orleans

Broadcasting, 37 AM. BUS. L.J. 587, 642 n. 348 (2000) (“Edge Broadcasting may not formally have been overruled,

but its viability is questionable at best.”).

125 Edenfield v. Fane, 507 U.S. 761 (1993).

126 Ohralik, 436 U.S. at 460-63.

127 Id.

128 Edenfield, 507 U.S. at 768-73.

danger to the public,

129

despite accepting similarly “broad” assertions of public danger in

Ohralik.

130

Edenfield does attempt to distinguish Ohralik, but in so doing basically limits Ohralik solely to

lawyers: Ohralik is a “narrow” holding that depends “upon certain unique features of in-person

solicitation by lawyers.”

131

The main difference appears to be that a lawyer is a “professional

trained in the art of persuasion” and thus much more likely to succeed in taking advantage of a

potential client.

132

It is ironic that the Court upholds an ethical rule on the assumption that

lawyers are uniquely dangerous and unprofessional. Moreover, the distinction between the

persuasive powers (and relative ethics) of lawyers and accountants is quite puzzling, and an

example of the Justices using their own impressions of the two professions to come to two totally

opposed holdings on a very similar issue.

133

B.

Florida Bar v. Went For It

Nevertheless, Ohralik can possibly be explained as an early case decided before the Court settled

on the more muscular approach of the late 1980s and 1990s. The 1995 case of Florida Bar v.

Went For It, Inc., however, is harder to explain, especially in light of the earlier cases In re

R.M.J.

134

and Shapero v. Kentucky Bar Association.

135

In re R.M.J. dealt with, among other things, a Missouri lawyer sending out professional

announcement cards that listed certain qualifications (like membership in bar of the United

States Supreme Court) to a broad list of recipients. This mailing violated the Missouri bar’s

allowed language on qualifications, and also was mailed outside of the permissible recipients.

136

129 See id. at 771-73 (noting the lack of any supporting “studies” or other evidence).

130 See Ohralik, 436 U.S. at 460-63.

131 Edenfield, 507 U.S. at 774.

132 Id. at 775. Edenfield also notes that the clients in Ohralik were unsophisticated and had just suffered a personal

loss, making them particularly vulnerable to fraudulent, in-person solicitation. Nevertheless, because Ohralik allows

a blanket ban on in-person solicitation, and there was no evidence in Ohralik that most (or even many) potential

clients are vulnerable, it is inconsistent to rely too heavily on the characteristics of the individual clients in either

Ohralik or Edenfield.

133 It is also worth noting the vote tallies on the two cases (Ohralik was 8-0 and Edenfield was 8-1), and that the

Court considered each case relatively straightforward, regardless of how incompatible they seem. A simple

comparison of the vote totals for the lawyer and non-lawyer professional regulation cases is also illuminating. As

noted above, Virginia Board was an 8-1 decision striking down an advertising ban by pharmacists. A year later, the

Court split 5-4 on a similar ban in Bates. The main difference between the cases was the Court’s impression of

lawyer advertising as quite distinct from pharmacist advertising.

Similarly, the Court split contentiously 5-4 (with no majority opinion) in Peel v. Disciplinary Comm. of Illinois, 496

U.S. 91 (1990) over an attorney advertisement claiming NBTA certification as a civil trial specialist. Four years

later the Court struck down an accountant rule barring an advertising using the terms “CPA and CFP” by a lawyer 7-

2 in Ibanez v. Board of Accountancy, 512 U.S. 136 (1994). Again, the main difference in the split appeared to be

the Court’s greater sensitivity to concerns about lawyer advertising.

134 455 U.S. 191 (1982).

135 486 U.S. 466 (1988).

136 In Re R.M.J., 455 U.S. at 193-98.

The Court rejected the Missouri Bar’s rules, and specifically held that a ban on mailings cannot

be sustained.

137

In Shapero v. Kentucky Bar Association the Court more explicitly held that a state bar

association could not ban truthful and nondeceptive direct mail solicitations to clients.

138

The

Court distinguished Ohralik, holding that a mailed solicitation implicated few of the dangers

noted of in-person solicitation.

139

Based on these precedents and Bates v. Arizona, a Federal District Court and the Eleventh

Circuit struck down a Florida ban on direct mailings to accident victims within thirty days of the

accident.

140

Went For It, however, overturned these courts and upheld the bar rule.

141

The Court had “little trouble crediting the Bar’s interest as substantial” under the governmental

interest prong of Central Hudson.

142

The interests stated were protecting the privacy of accident

victims, “preserv[ing] the integrity of the legal profession” and defending “the reputation of the

legal profession.”

143

There are a couple of interesting notes about these two justifications.

While it is true that Ohralik relied on two separate justifications (protecting privacy and potential

to mislead), later cases had generally treated Ohralik as high potential for deception case and not

a privacy case.

144

By contrast, Went for It includes no allegation that the advertising at issue is

actually or even potentially false or misleading. Instead, the biggest problem seems to be the

effect upon the public perception of lawyers.

Moreover, the harm to reputation justification is in direct conflict with the Court’s resistance to

the suppression of commercial speech on “paternalistic” grounds,

145

and the Court’s earlier

holding that lawyer advertising cannot be banned on “the mere possibility that some members of

the population might find [the advertising] offensive” or that “some members of the bar might

find [it] beneath their dignity.”

146

Similarly, in Bolger v. Youngs Drug Products, Corp.

147

the

Court rejected a government ban on “intrusive” and potentially “offensive” advertisements for

contraceptives. The Court stated that a state interest in protecting mail recipients from offensive

materials was of “little weight” because the Court has “consistently held that the fact that

137 Id. at 205-206. One humorous note is the Court’s admonition that announcing membership in its own bar is

constitutionally protected, but “uninformative” and in “bad taste.” Id. at 205.

138 Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988).

139 Shapero, 486 U.S. at 473-78.

140 See McHenry v. Florida Bar, 21 F.3d 1038 (1994).

141 See Florida Bar v. Went For It, 515 U.S. 618 (1995).

142 Went For It, 515 U.S. at 625. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557

(1980) first stated the Court’s intermediate scrutiny test for commercial speech. See Michael R. Siebecker,

Corporate Speech, Securities Regulation, and an Institutional Approach to the First Amendment, 48 WM. & MARY

L. REV. 613, 631-33 (2006) (discussing Central Hudson).

143 Id. at 624-25.

144 See, e.g. In re R.M.J., 455 U.S. at 202 (using Ohralik as an example supporting the proposition that regulation

“is permissible where the particular advertising is inherently likely to deceive or where the record indicates that a

particular form or method of advertising has in fact been deceptive.”).

145 44 Liquormart, 517 U.S. at 497.

146 Zauderer, 515 U.S. at 648.

147 463 U.S. 60 (1983).

protected speech may be offensive to some does not justify its suppression.”

148

This is especially

so in direct mail cases where the recipient can exercise the “short, though regular, journey from

mail box to trash can.”

149

The Court thus had a relatively weak factual and legal case on either privacy or consumer

protection grounds. Nevertheless, a close reading of the case shows the great credit that the

Court gave to bar association worries and evidence about the low public opinion of lawyers.

150

More than any of the other lawyer advertising cases, Went For It evinces a patent sympathy for

the plight of lawyer public image and a clear deference to the findings and desires of bar

associations on these issues. It is hard to imagine that accountants or pharmacists would possibly

have received the same treatment, and, just as the ban on in-person solicitation allowed by

Ohralik has been limited to lawyers, the Court has never upheld an advertising ban like Florida’s

for any other profession.

Ohralik and Went For It thus present a puzzle to students of the commercial speech doctrine.

They are now both well known and venerable precedents, yet in an area of increasing scrutiny of

governmental regulation of advertising they have basically been limited to their facts. Kathleen

Sullivan has noted that Ohralik and Went For It are “difficult to square with the Court’s other

advertising decisions.”

151

C.

Brown v. Legal Foundation of Washington

The strange constitutional status of lawyer advertising made me wonder whether there were

other areas of constitutional law that dealt with lawyers and produced puzzling, sui generis

results. A recent Fifth Amendment takings case, Brown v. Legal Foundation of Washington,

152

struck me as another apt example from a totally distinct area of the law.

The Fifth Amendment takings clause, like the First Amendment’s commercial speech doctrine,

has recently been a central concern of the Court. In relevant part, the Fifth Amendment states

“nor shall private property be taken for public use, without just compensation.”

153

This simple

injunction contains (at least) three distinct issues: “whether the interest asserted by the plaintiff is

property, whether the government has taken that property, and whether the plaintiff has been

denied just compensation for the taking.”

154

The Court has recently decided two takings cases concerning state IOLTA (“Interest on Lawyers

Trust Accounts”) programs. Every State in the Union has an IOLTA program.

155

IOLTA

148 Bolger, 515 U.S. at 638.

149 Id. at 639.

150 Went For It, 515 U.S. at 625-34.

151 Kathleen M. Sullivan, the Intersection of Free Speech and the Legal Profession: Constraints on Lawyers’ First

Amendment Rights, 67 FORDHAM L. REV. 569, 578-79 (1998).

152 538 U.S. 216 (2003).

153 U.S. CONST. Amend. V.

154 Phillips v. Washington Legal Foundation, 524 U.S. 156, 172 (1998) (Souter, J., dissenting).

155 Brown, 538 U.S. at 220. The origin of these programs is actually as great example of the unique powers of

lawyer self-regulation. They were created in forty-five states under the inherent authority of state supreme courts,

and by statute in the other five. In Indiana and Pennsylvania IOLTA was originally statutory, but the Supreme

programs take advantage of the fact that lawyers are frequently called upon to handle client

funds for a short period of time, or in amounts small enough that establishing a separate account

would be administratively burdensome. In these situations lawyers are required (or encouraged)

to place the client funds in an IOLTA account, and the interest generated from these accounts are

used by state bar or supreme court authorities to pay for legal services for the poor.

156

The first IOLTA takings cases held that the interest on client funds was not “property” under the

Fifth Amendment.

157

In Washington Legal Foundation v. Texas Equal Access to Justice

Foundation, the U.S. Fifth Circuit of Appeals held that IOLTA interest was property subject to

the Fifth Amendment Takings Clause.

158

In Phillips v. Washington Legal Foundation

159

a 6-3

majority of the Supreme Court agreed. The Court held that because “interest follows principal”

the interest on client IOLTA funds was the clients’ property.

160

Interestingly, the Court did not

reach the issue of whether IOLTA funds were actually “‘taken’ by the State, or what amount of

‘just compensation,’ if any, [was] due respondents.”

161

Phillips is thus a weird, incomplete case. On the one hand, it explicitly left open the question of

whether IOLTA programs cause a Fifth Amendment taking. On the other hand, it was hard to

imagine after Phillips that IOLTA programs did not constitute a compensable taking, because

once the Court has found that the government has taken property from a private party there are

few cases where the plaintiffs lost.

162

The Court has found unconstitutional takings even if the

damages were miniscule or non-existent, as in Loretto v. Teleprompter Manhattan CATV,

163

where the Court held that even if a taking increased the value of a property it might still be

recompensable.

164

Further, the Court’s decision in Webb's Fabulous Pharmacies, Inc. v. Beckwith

165

seemingly

foreclosed IOLTA’s most promising argument: that the government was not “taking” anything,

because the interest itself was government-created value that otherwise would not have existed.

In Webb’s Famous a Florida statute allowed a County Clerk to collect interest on a court

interpleader fund. Without the statute and the clerk’s actions there would have been no interest

earned on the fund.

166

Nevertheless, the court cited the familiar maxim that interest follows

principle, and explicitly rejected the argument that the Florida court “takes only what it

Courts invalidated the statute and created the IOLTA program by court order. See Brown v. Legal Foundation of

Wash., 538 U.S. 216, 221 n.2 (2003).

156 See id. at 220-226.

157 See Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 975-76 (1st Cir.1993) (listing cases).

158 94 F.3d 996 (1996).

159 524 U.S. 156 (1998).

160 Phillips, 524 U.S. at 164-72.

161 Id. at 172.

162 See Tarra L. Morris, The Dog in the Manger, The First Twenty-Five Years of War on IOLTA, 49 ST. LOUIS U.

L.J. 605, 612-15 (noting that IOLTA proponents were “surprised” by their victory in Brown and quoting crowing

IOLTA opponents “[t]asting victory”).

163

458 U.S. 419 (1982).

164 Loretto, 458 U.S. at 437 n. 15; cf. Phillips, 524 U.S. at 169-70 (discussing and citing Loretto for the same

proposition).

165 449 U.S. 155 (1980).

166 Webb’s, 449 U.S. at 156-60.

creates.”

167

The Court found a taking and required the state to disgorge the interest earned to the

recipient of the underlying interpleader funds.

168

Nevertheless, the first few cases after Phillips were a mess, as courts struggled to answer the

unsettled question of whether IOLTA constituted a taking, and what, if any, just compensation

was due. The main battleground seemed to be whether to apply the per se test for physical

takings, or the ad hoc Penn Central test for regulatory takings.

169

The choice between the two tests in these cases was much more than academic. In takings cases

the choice of the test usually presages the case’s outcome. In cases where the per se test is met

the Court always finds a taking, and the only remaining question is just compensation.

170

By

contrast, cases considered under the ad hoc, Penn Central standard frequently result in a finding

of no taking at all.

171

The post-Phillips cases seemed to follow this logic exactly: the cases that

applied the Penn Central test found no taking, whereas the per se cases found an unconstitutional

taking and required either full repayment or suitable equitable relief.

172

In Brown v. Legal Foundation of Washington,

173

however, the Supreme Court broke the mold by

finding a per se taking of private property for public use, but refused to require any

compensation. The Court began its analysis with a glowing review of the “public use”

requirement, calling IOLTA a “dramatic success” serving the “compelling interest” of providing

legal services to the poor.

174

The Court then reiterated its holding in Phillips that IOLTA interest

167 Id. at 451-52.

168 Id. at 453-4.

169 For example, when Phillips was considered on remand to the Western District of Texas the court applied the ad

hoc approach and found no taking. See Washington Legal Found. v. Texas Equal Access to Just. Found., 86

F.Supp.2d 624, 643-47 (W.D. Tex. 2000). On appeal to the fifth Circuit the court overturned that decision and

applied the per se test. See Washington Legal Found. v. Texas Equal Access to Just. Found., 270 F.3d 180, 186-189

(5th Cir. 2001). The Ninth Circuit followed a different path. The original panel to rule on an IOLTA program post-

Phillips applied the per se test and found an unconstitutional taking, see Wash. Legal Found. v. Legal Found. of

Wash., 236 F.3d 1097, 1100-01 (9th Cir. 2001), while a later en banc decision applied the ad hoc approach and

found no taking. See Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 854-57 (9th Cir. 2001)(en banc).

170 “When the government physically takes possession of an interest in property for some public purpose, it has a

categorical duty to compensate the former owner . . . no matter how small [the compensation due].” Tahoe-Sierra

Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 322-23 (2002).

171 See Mark Sagoff, Muddle Or Muddle Through? Takings Jurisprudence Meets The Endangered Species Act, 38

WM. & MARY L. REV. 825, 849 (1997) (“The Court's ad hoc approach gives prospective litigants a clear idea that

plaintiffs will lose absent the special circumstances captured by the per se rules.”); Tahoe-Sierra, 535 U.S. at 321-22

(“Our jurisprudence involving condemnations and physical takings is as old as the Republic and, for the most part,

involves the straightforward application of per se rules. Our regulatory takings jurisprudence, in contrast, is of more

recent vintage and is characterized by essentially ad hoc, factual inquiries, designed to allow careful examination

and weighing of all the relevant circumstances.”).

172 See supra note __.

173 538 U.S. 216 (2003).

174 It is worth noting how closely this section hews to the bar association praise of these programs, even including

the statistic that IOLTA funds provide “legal services to literally millions of needy Americans.” Cf. Brief for the

ABA as Amicus Curiae in Support of Respondents, Brown v. Washington Legal Foundation, 538 U.S. 216 (2003)

(No. 01-1325), 2002 WL 31399642, at *4-7. This section also parallels the section in Went-For-It where the Court

uncritically credits each of the bar association factual defenses for the advertising restrictions at issue. See Florida

Bar, 515 U.S. at 624-25. One other interesting parallel in these cases is the role of Justice O’Connor. She was a

long-time defender of lawyer regulation of advertising, and authored Went-For-It. In Phillips she joined a 5-4

was the private property of the plaintiffs and held that “a per se approach is more consistent with

the reasoning in our Phillips opinion than Penn Central’s ad hoc analysis.”

175

Thus, the

“interest was taken for a public use when it was ultimately turned over to the foundation,”

leaving only the question of “just compensation.”

The Court held that “just compensation” is measured “by the property owner’s loss rather than

the government’s gain.”

176

Because the IOLTA interest is only supposed to be generated when

the transaction costs of creating a separate bank account would be more than the interest earned,

the Court concluded that the loss was always zero, and required no compensation at all.

177

It is still too early to know if Brown will turn out to be a sui generis case that stands outside the

mainstream of takings jurisprudence the way that Ohralik and Went-for-It have in the

commercial speech area. There are several tell-tale signs that make it seem likely, however. The

first is the Court’s finding of no compensation whatsoever, despite placing the taking in the per

se category. As the Court itself has repeatedly noted, once a per se or “categorical” taking has

been found it applies a “clear rule” and the government must pay damages, “no matter how

small.”

178

If there is any clear theme from the Court’s per se takings cases it is that once a per se

taking is found the government will have to pay something.

179

In short, once the Court finds a

per se taking, the case is generally all over but the crying. Nevertheless, in Brown the Court

found room within its previously relatively uncontroversial “just compensation” doctrines to

deny relief.

180

Second, Brown is difficult to square with Webb’s, especially the Court’s explicit rejection of the

government-created value argument. Brown distinguishes Webb’s by noting that in Webb’s the

State of Florida collected both a statutory interpleader fee and the interest generated, as well as

noting that the IOLTA interest only exists because of the pooling of funds that would otherwise

generate no interest.

181

Nevertheless, in Webb’s Florida’s entire argument was that the state

statute itself created the interest at issue and that in the absence of the statute there would be no

interest to collect.

182

The Webb’s Court rejected that argument, noting that regardless of whether

a state statute created the interest, the interest still belonged to the owner of the underlying

principal.

183

As a conceptual matter, this argument looks quite similar to an argument the Court

majority finding that the interest was the private property of the plaintiffs, but in Brown she switched sides to create

a 5-4 majority allowing IOLTA programs to continue.

175 Brown, 538 U.S. at 235.

176 Id. at 235-36.

177 See id. at 239-41.

178 Id. at 234.

179 See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 437 & n. 15 (1982) (finding a taking in a

situation where the government action might have actually increased the value of the property overall, and assuming

that there will be some finding of compensation) (cited in Phillips, 524 U.S. at 169-70); Phillips, 524 U.S. at 170

(“The government may not seize rents received by the owner of a building simply because it can prove that the costs

incurred in collecting the rents exceed the amount collected.”).

180 It would be an error to call any part of takings jurisprudence wholly uncontroversial. Nevertheless, prior to

Brown few of the Court’s cases had hinged on the valuation question; the bulk of the work was done on the ins and

outs of the taking itself.

181 See Brown, at 238 n. 10.

182 Webb’s, 449 U.S. at 161-62.

183 See id.

accepted in Brown: that without the government created system pooling IOLTA funds there

would be no net interest. Yet in Brown the Court allowed the government to keep the

government-created value.

184

Lastly, one way to predict that Brown will prove to be a sui generis holding is the difficulty of

imagining another type of per se taking where the government will take something of obvious

value that has absolutely no value to the plaintiff. In fact, the Court’s holding that just

compensation is measured by the loss to the plaintiffs will likely prove a relative side note as the

battle over regulatory and per se takings rages on. As Christopher Serkin has argued, Brown will

not prove “one of the most important valuation cases in recent years,” but will instead be treated

as a “prosaic” and fact-specific treatment of fair market value.

185

V.

Miranda’s Right To Silence and Right To Counsel

One of criminal procedure’s most famous cases provides our next example. In 1966 the

Supreme Court revolutionized the law of police interrogations with Miranda v. Arizona.

186

Miranda required that police officers warn a suspect in custody prior to interrogation “that he has

a right to remain silent, that any statement he does make may be used against him, and that he

has a right to the presence of an attorney, either retained or appointed.”

187

If these warnings are

not given prior to interrogations any statements taken in violation of Miranda generally cannot

be introduced at trial.

188

The Miranda warnings tell a suspect of two broad rights: the right to remain silent and the right

to an attorney. In the Miranda opinion itself neither right is favored over the other, and both are

treated as critical to safeguarding a suspect’s rights. In particular, if a suspect exercises either

right, the interrogation must stop. “Once warnings have been given, the subsequent procedure is

clear. If the individual indicates in any manner, at any time prior to questioning, that he wishes

to remain silent, the interrogation must cease.”

189

Similarly, “[i]f the individual states that he

wants an attorney, the interrogation must cease until an attorney is present.”

190

The Court’s treatment of these two rights, however, have diverged radically over time, with

Michigan v. Mosely

191

and Edwards v. Arizona

192

serving as the two prime examples. In Mosely

the Court faced the question of how to handle a second round of questioning after a suspect had

already invoked his right to remain silent. The Court cited Miranda for the proposition that the

184 See Brown, at 235-37.

185 Christopher Serkin, Valuing Interest: Net Harm and Fair Market Value in Brown v. Legal Foundation of

Washington, 37 IND. L. REV. 417, 421 (2004); accord Ronald D. Rotunda, Found Money: IOLTA, Brown v. Legal

Foundation of Washington, and the Taking of Property Without the Payment of Compensation, 2003 CATO SUP. CT.

REV. 245, 268 (2003) (“When one looks closely at [Brown], there is much less to it than meets the eye.”).

186 384 U.S. 436 (1966).

187 Miranda, 384 U.S. at 444.

188 Miranda, 384 U.S. at 479. There are, naturally, exceptions to this rule. See, e.g., Custodial Interrogations, 35

GEO. L.J. ANN. REV. CRIM. PROC. 162, 164 & n. 523 (“Exceptions to the Miranda rule include good faith,

attenuation, independent source, and independent discovery.”).

189 Miranda, 384 U.S. at 473-74.

190 Id. at 474.

191 423 U.S. 96 (1975).

192 451 U.S. 477 (1981).

“right to cut off questioning” must be “scrupulously honored.”

193

Nevertheless, the Court held

an interval of “more than two hours,” questioning by another officer about a different crime, and

a new set of Miranda warnings, was sufficiently scrupulous.

194

From the outset, Mosely was

seen as a significant weakening of Miranda,

195

and later cases have made clear that there is no

different crime requirement and that the police can scrupulously honor a suspect’s right to

remain silent by pausing their interrogation for a period as short as an hour or two.

196

Mosely is thus notable for both its part in the long-term project of eroding Miranda’s protections,

and its role as the first case to really differentiate between the right to remain silent and the right

to counsel. As Mosely made clear, its holding on the malleability of a declared desire to exercise

the right to remain silent had no effect on the requirements following a request to speak to a

lawyer.

197

While the results of an exercise of either right were treated quite similarly in Miranda

itself, for the first time Mosely establishes that the right to remain silent is to be treated less

favorably.

198

There are no post-Mosely Supreme Court cases on how to treat questioning after an

unambiguous request to remain silent, but the other Supreme Court cases on the treatment of

silence at trial are generally unfriendly.

199

Edwards v. Arizona made the distinction between silence and counsel even clearer. Edwards

was decided in 1981, and fell directly during a period of erosion for Miranda protections.

200

Edwards dealt with a situation analogous to that considered in Mosely: a suspect had asked for

counsel, and before counsel had arrived the police reinstituted their interrogation, and the

Defendant eventually confessed.

201

The Arizona Supreme Court relied on Mosely and held that

if the confession was gained voluntarily during the second interrogation, Miranda was

satisfied.

202

193 Mosely, 423 U.S. at 104.

194 Id.

195 In dissent Justice Brennan called Mosely another step in Miranda’s “erosion and . . . ultimate overruling.”

Mosely, 423 U.S. at 112; see also Yale Kamisar, The Warren Court (Was It Really So Defense-Minded?), The

Burger Court (Is It Really So Prosecution-Oriented?), and Police Investigatory Practices, in THE BURGER COURT:

THE COUNTER-REVOLUTION THAT WASN'T 62, 83 & n.133 (Vincent Blasi ed., 1983) (noting that Mosely would

likely allow a waiver in many cases beyond its bare facts, and significantly weaken Miranda).

196 Some of the cases on this issue are gathered in Custodial Interrogations, 35 GEO. L.J. ANN. REV. CRIM. PROC.

162, 177 n. 568 (2006).

197 Mosely, 423 U.S. at 101 n. 7.

198 Anthony X. Mcdermott & H. Mitchell Caldwell, Did He or Didn't He? The Effect of Dickerson on the Post-

Waiver Invocation Equation, 69 U. Cin. L. Rev. 863, 896-97 (2001) (“For the first time, a salient distinction was

made between the right to counsel and the right to silence. Those suspects requesting the latter thus warranted less

protection from the ‘menacing police interrogation procedures’ than those who requested the former.”

199 The Court has also applied less than solicitous treatment to pre-arrest and post-arrest silence. See Jenkins v.

Anderson, 447 U.S. 231, 238 (1980) (prearrest silence); Fletcher v. Weir, 455 U.S. 603 (1982) (per curiam)

(allowing the use of post-arrest silence if a defendant later takes the stand during his criminal trial). Post-Miranda

warnings silence, however, cannot be used at trial. Doyle v. Ohio, 426 U.S. 610 (1976). It is worth noting that a

prosecutor could not use a pre-arrest, post-arrest, or post-Miranda warning request for a lawyer as evidence of guilt,

despite the fact that some jurors might consider a request for a lawyer to be at least as incriminating as silence.

200 Leslie A. Lunney, The Erosion of Miranda: Stare Decisis Consequences, 48 CATH. U. L. REV. 727, 745-86

(1999).

201 Edwards, 451 U.S. at 479-80.

202 State v. Edwards, 594 P.2d 72, 77-78 (1979).

The Supreme Court reversed, making Edwards one of the few decisions to unequivocally

embrace Miranda’s language and holding.

203

The Court noted that it had “strongly indicated that

additional safeguards are necessary when the accused asks for counsel” and held that once an

accused asks for counsel she cannot be questioned until she meets with counsel or she herself

“initiates further communication.”

204

Edwards also discussed Mosley and made explicit the

differential treatment between a request to remain silent and a request for counsel.

205

Given that Edwards is surrounded by Miranda cases that refer to the warnings as a non-

constitutionally required, prophylactic measure,

206

the stridency of the opinion is striking. The

Court states “[t]he Fifth Amendment right identified in Miranda is the right to have counsel

present at any custodial interrogation”

207

and creates a bright line requirement that all

questioning stop following a request for counsel.

The cases that followed Edwards generally built upon this bright line rule.

208

The fact that the

Court has followed up on Edwards at all is noteworthy. The Court kept the right to counsel

question salient through multiple cases, strengthening its protections. By contrast, the Court’s

last real statement on the effect of an unequivocal request to remain silent was Morley, and this

has resulted in a long, slow drift in the federal courts where even the protections offered by

Morley have been diluted.

209

In Smith v. Illinois, one of the first post-Edwards cases, the Court reiterated that once an

unequivocal request for counsel is made all questioning must stop, and later equivocal statements

about wanting a lawyer were of no consequence.

210

In Arizona v. Roberson the Court held that

when an accused has requested counsel he may not be questioned later by a new set of detectives

about a totally separate crime, even if the second detectives did not know of the request for

counsel.

211

The Court recognized the factual similarities to Mosley (the second set of detectives

investigating a second crime), but again distinguished the import of a request to remain silent.

212

In Minnick v. Mississippi, the accused requested counsel, met with counsel, and then was

questioned by the police without his lawyer present.

213

Minnick has a lengthy passage discussing

the efficacy of the bright line Edwards rule, and well encapsulates a theme that runs throughout

all of these cases: what is the point of having Miranda rights at all if the police can question you

203 Edwards, 451 U.S. at 481-82.

204 Id. at 484-85.

205 Id. at 485 (“In Michigan v. Mosley, 423 U.S. 96 (1975), the Court noted that Miranda had distinguished between

the procedural safeguards triggered by a request to remain silent and a request for an attorney and had required that

interrogation cease until an attorney was present only if the individual stated that he wanted counsel.”).

206 See Susan R. Klein, No Time for Silence, 81 TEX. L. REV. 1337, 1337-38 & n. 6 (“Through a series of cases in

the 1970s and 80s, the Court ‘deconstitutionalized’ Miranda.”).

207 Id. at 485-86.

208 The main exception is the series of cases that have required a clear request for counsel to trigger Edwards,

rejecting more equivocal or unclear requests. See, e.g., Davis v. U.S. 512 U.S. 452 (1994).

209 See Custodial Interrogations, supra note __, at 177 n. 568 (2006) (listing recent cases applying Morley).

210 See Smith v. Illinois, 469 U.S. 91, 94-100 (1984).

211 See Arizona v. Roberson, 486 U.S. 675, 680-88 (1988).

212 Roberson, 486 U.S. at 683.

213 Minnick v. Mississippi, 498 U.S. 146, 155-58 (1990).

regardless of your request for an attorney?

214

In this regard, the Justices’ experience as lawyers

seems extremely relevant. Every lawyer knows and fears the possibility that their client will be

talking to opposing parties outside of the lawyer’s presence and say something that can never be

retracted or fixed.

215

In sum, there is now little doubt that the right to counsel is better protected by Miranda and its

progeny than the right to remain silent.

216

Aside from the Court’s familiarity and natural

understanding of the importance of counsel, however, there is not much to support placing the

right to counsel above the right to remain silent. To the contrary, the right to remain silent seems

to be the more central right protected by Miranda.

Insofar as Miranda is constitutionally based, it is based squarely on the Fifth Amendment’s right

to avoid self-incrimination, and not the Sixth Amendment’s right to counsel. Miranda itself

referred to self-incrimination,

217

and in U.S. v. Dickerson the Court noted the many references in

Miranda and its progeny to the Fifth Amendment in holding that the Miranda holding was

constitutionally required.

218

The Sixth Amendment’s right to counsel, by contrast, does not

attach until “prosecution is commenced” not during the police investigation of a crime.

219

Given that Miranda is a Fifth Amendment case, it is somewhat strange that the right to have

counsel present during questioning would be elevated above a straightforward and direct

invocation of the suspect’s right to remain silent. This is especially so since a request for counsel

is treated as an invocation of Fifth Amendment rights: “an accused's request for an attorney is

per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.”

220

Furthermore, it is dubious to suggest that protecting the right to counsel will do more to

counteract coercion or police questioning. As the Court has repeatedly noted “any lawyer worth

his salt will tell the suspect in no uncertain terms to make no statement to police under any

circumstances.”

221

In fact, the very first thing any lawyer summoned to a police station by a

Miranda request will do is find out what the client has already said, and strongly advise the client

to say nothing further.

222

Given that the main protection presented by the lawyer is silence,

214 Minnick, 498 U.S. at 152-56.

215 Cf. Watts v. Indiana, 338 U.S. 49, 59 (1949) (Jackson, J., concurring in result) (“Any lawyer who has ever been

called into a case after his client has ‘told all’ and turned any evidence he has over to the Government, knows how

helpless he is to protect his client against the facts thus disclosed.”).

216 See Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L. REV. 1449, 1481

(2005) (“A defendant's invocation of his right to counsel receives more solicitous treatment than his invocation of

his right to remain silent.”).

217 See, e.g., Miranda, 384 U.S. at 439 (arguing that coercive nature of custodial interrogations threatens the

“privilege under the Fifth Amendment ... not to be compelled to incriminate [oneself]”); id. at 457 (requiring

“adequate safeguards to protect precious Fifth Amendment rights”).

218 See Dickerson v. U.S., 530 U.S. 428, 440 & n. 5 (2000) (listing cases that have described Miranda as a Fifth

Amendment case).

219 See, e.g., Texas v. Cobb, 532 U.S. 162, 167-68 (2001).

220 Fare v. Michael C., 442 U.S. 707, 719 (1979).

221 See, e.g., Escobedo v. Illinois, 378 U.S. 478, 488 (1964) (quoting Watts v. Indiana, 338 U.S. 49, 59 (1949)

(Jackson, J., concurring in result); Moran v. Burbine, 475 U.S. 412, 436 n. 5 (1986) (quoting same).

222 See Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 734-35 (1992) ("Virtually any

competent lawyer would advise his client in the strongest possible terms to remain silent, and it would be a rare

client indeed who would disregard such advice.").

shouldn’t a direct request to exercise Fifth Amendment rights be treated at least as favorably as a

request for the ancillary right to a lawyer during questioning? Instead, a direct request to remain

silent requires only a short break in the questioning, while a request for a lawyer requires a full

stop until a lawyer is consulted, and most likely a full stop of all interrogation.

223

As such, Edwards and its progeny stand out as another sui generis pro-lawyer decision. While

the Court was busily eroding the Miranda protections on multiple fronts it chose to retain quite

robust protections for accused who clearly expressed a desire for a lawyer. The advantages to

the legal profession are clear: whatever else an accused should know, she should know to request

a lawyer first and foremost.

VI. Noncompete Agreements

Virtually every business and profession in America except for lawyers are treated the same when

the question is the enforceability of contractual noncompete agreements: the agreement is subject

to a multi-factor reasonableness test, and if found reasonable, is enforced. By contrast, the great

majority of courts have a per se rule against enforcing lawyer noncompetes, and a majority of

courts refuse to enforce any agreement which discourages free movement of lawyers. This

differential treatment is defended on the basis of now familiar public policy concerns that the

lawyer-client relationship is special and thus must be treated more solicitously than other

professional relationships.

At common law noncompete agreements were generally held illegal as a restraint on trade.

224

This changed through the twentieth century, and under current law noncompete agreements are

analyzed under a reasonableness inquiry: “(1) Does the covenant protect a legitimate business

interest of the employer? (2) Does the covenant create an undue burden on the employee? (3) Is

the covenant injurious to the public welfare? (4) Are the time and territorial limitations contained

in the covenant reasonable?”

225

This is true for every profession except for lawyers.

226

The development of the law covering lawyer noncompete agreements is quite distinct. It begins

with a 1961 ABA ethics opinion, which suggested for the first time that a lawyer agreement not

to compete was unethical.

227

The opinion noted that the practice of law “is a profession, not a

business,” “[c]lients are not merchandise,” and “[l]awyers are not tradesmen.”

228

The opinion

223 One obvious difference between a request for a lawyer and a request to remain silent is that the request for a

lawyer has a natural ending point (the arrival of the lawyer). Nevertheless, given that Miranda is focused on the

Fifth Amendment, a request to remain silent should be treated at least as well as a request for a lawyer, i.e. a request

for silence should be honored until the suspect invites further communication or is provided with a lawyer.

224 See Turner Herbert, Let’s Be Reasonable: Rethinking the Prohibition Against Noncompete Clauses in

Employment Contracts Between attorneys in North Carolina, 82 N.C. L. REV. 249, 252-54 (2003).

225 Weber v. Tillman, 913 P.2d 84, 90 (Kan. 1996); accord RESTATEMENT (SECOND) CONTRACTS § 188 (1985).

226 See, e.g., Paula Berg, Judicial Enforcement of Covenants Not to Compete Between Physicians: Protecting

Doctors’ Interests at Patients’ Expense, 45 RUTGERS L. REV. 1, 6-29 (1992) (covering cases upholding doctor

noncompetes); Schott v. Beussink, 950 S.W.2d 621, 625 (Mo. App. 1997) (accountant); Riddle v. Geo-Hydro

Engineers, Inc.,561 S.E.2d 456, 457-58 (Ga. App. 2002) (engineer).

227 ABA Comm. on Professional Ethics, Formal Opinion 300 (1961) (hereinafter ABA Op. 300).

228 Id.

also noted that such agreements are “an unwarranted restriction on the right of a lawyer to

choose where he will practice and inconsistent with our professional status.”

229

In 1969 the ABA adopted this reasoning in its first formal ethics code, the ABA Model Code of

Professional Responsibility, DR 2-108(A).

230

This restriction passed through to the later Model

Rules of Professional Conduct in Rule 5.6(a).

231

At this point another justification for the rule

was explicitly stated: such agreements “limit professional autonomy” and also limit “the freedom

of clients to choose a lawyer.”

232

Of course, while these ethics opinions and rules may be enforceable as a professional sanction,

they are explicitly not meant for court enforcement.

233

Nevertheless, courts frequently rely on

these sources for persuasive authority, and in the case of lawyer noncompete covenants, courts

have relied almost completely on the ABA’s approach to the issue. The first, and leading, case is

Dwyer v. Jung.

234

Dwyer dealt with a noncompete agreement amongst law partners. It began by

noting that “[a] lawyer's clients are neither chattels nor merchandise, and his practice and good

will may not be offered for sale” and continued on to defend a client’s right to hire “counsel of

his own choosing.”

235

The court held that “[s]trong public policy considerations preclude” using

“commercial standards” to gauge the legal profession, and struck down the noncompete

clause.

236

The great bulk of case law followed Dwyer and barred noncompete agreements.

237

There are a

couple of things to note about these cases. First, while they now tend to emphasize client

autonomy, the original justification for barring noncompetes was clearly a worry about lawyer

autonomy.

238

Second, the discussions of the legal profession generally depend on the familiar

bar association arguments that the law is not a business, and that commercialization is to be

avoided as a matter of public policy.

239

229 Id.

230 ABA MODEL CODE OF PROF’L RESPONSIBILITY, DR 2-108(A) (1969) (“A lawyer shall not be a party to or

participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to

practice law after the termination of a relation created by the agreement, except as a condition to payment of

retirement benefits.”). Opinion 300 was explicitly cited as a basis for the rule. See Id. n. 93.

231 Rule 5.6 (a) states: “A lawyer shall not participate in offering or making . . . [an] agreement that restricts the

right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon

retirement.” MODEL RULE PROF’L CONDUCT 5.6(a)(2006).

232 CENTER FOR PROFESSIONAL RESPONSIBILITY, THE LEGISLATIVE HISTORY OF THE MODEL RULES OF

PROFESSIONAL CONDUCT 167 (1987) (setting forth rule 5.6 and its justifications).

233 See MODEL RULE PROF’L CONDUCT preamble (2006) (“Violation of a Rule should not itself give rise to a cause

of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.”).

234 336 A.2d 498 (N.J. Super. Ct. Ch. Div. 1975), aff’d 343 A.2d 208 (N.J. App. 1975).

235 Except, humorously, “perhaps in cases of indigency.” Dwyer, at 499-500 & n. 1.

236 Id. at 500.

237 See Robert M. Wilcox, Enforcing Lawyer Non-Competition Agreements While Maintaining the Profession: The

Role of Conflict of Interest Principles, 84 MINN. L. REV. 915, 924-29 (discussing Dwyer and its progeny);

WOLFRAM, supra note __, at 885 n.45 (same).

238 See Lisa Sorenson Ewald, Agreements Restricting the Practice of Law: A New Look at an Old Paradox, 26 J.

LEGAL PROF. 1, 11 (noting the drift from lawyer-centric justifications to client-centered ones).

239 See, e.g., Corti v. Fleisher, 417 N.E.2d 764, 769 (Ill. App. 1981) (stating that “[m]embers of the public who seek

the services of an attorney cannot be treated by him as mere merchandise or articles of trade in the market place”

and citing Dwyer).

Third, courts have been so protective of Rule 5.6(a) that they have also invalidated contractual

provisions that do not expressly bar competition, but may have the effect of dampening

competition. For example, in Cohen v. Lord, Day & Lord the court struck down a contractual

provision that allowed a former partner to compete, but lessened his post-departure

compensation.

240

The court quoted DR 2-108(A), noted that “[c]lients are not merchandise” and

“[l]awyers are not tradesmen” and barred the provision because it “would functionally and

realistically discourage and foreclose a withdrawing partner from serving clients who might wish

to continue to be represented by the withdrawing lawyer and would thus interfere with the

client's choice of counsel.”

241

Lastly, courts have been quite explicit about treating lawyers differently than other professions.

For example, Raymundo v. Hammond Clinic Association

242

summarily dismissed the argument

that medical ethics should prohibit enforcement of noncompete agreements as “self-serving.”

243

The New Jersey case of Karlin v. Weinberg

244

followed closely on the heels of Dwyer v. Jung.

Karlin expressly rejected the idea that Dwyer applied equally to doctors, and went on to apply a

reasonableness analysis.

245

Karlin has been regularly cited by later courts rejecting physicians

efforts to invalidate noncompete clauses.

246

Nevertheless, the distinction between lawyers and other professionals is quite difficult to defend.

For example, a number of commentators have argued that doctors should be treated as favorably

as lawyers,

247

while other commentators have argued that lawyers should face a reasonableness

standard, like doctors and other professionals.

248

Both of those arguments have merit, because it

is hard to find a meaningful distinction between lawyer noncompetes and those of other

professionals. It is hard to imagine that a doctor’s patients or an accountant’s clients have less of

an interest in choosing their doctor or accountant. In fact, the choice of a doctor seems much

more personal and much more likely to have serious and life-changing ramifications than the

choice of a lawyer.

Commentators have also argued that the per se rule against noncompete agreements have

actually made clients worse off. This is because it encourages lawyers in law firms to focus

240 See Cohen v. Lord, Day & Lord, 550 N.E.2d 410, 410-11 (N.Y. 1989).

241 Cohen, 550 N.E.2d at 411. Other courts have found similarly, see, e.g., Spiegel v. Thomas, Mann, & Smith,

P.C., 811 S.W.2d 528, 530 (Tenn.1991). A few courts have held the opposite. See Fearnow v. Ridenour, Swenson,

Cleere & Evans, 138 P.3d 723 (Ariz. 2006) (holding that “an agreement among law partners imposing a reasonable

toll on departing partners who compete with the firm is enforceable”).

242 449 N.E.2d 276 (Ind.1983).

243 Raymundo, 449 N.E.2d at 280-81.

244 372 A.2d 616 (N.J. Super. A.D. 1977).

245 Karlin, 372 A.2d at 618.

246 See, e.g., Intermountain Eye and Laser Centers, P.L.L.C. v. Miller, 127 P.3d 121, 131-33 (Idaho 2005) (citing

Karlin and holding that doctor noncompetes are to be closely scrutinized under the reasonableness test). One recent

case has created a per se bar to physician noncompetes that is similar to the treatment of lawyers. See Murfreesboro

Medical Clinic, P.A. v. Udom, 166 S.W.3d 674 (Tenn. 2005). Other States have done so by statute, see

Colo.Rev.Stat. Ann. § 8-2-113(3) (2003); Del.Code Ann. tit. 6, § 2707 (1993); Mass. Gen. Laws Ann. ch. 112, §

12X (1991) or as a matter of state antitrust law. See Odess v. Taylor, 211 So.2d 805 (Ala. 1968).

247 Berg, supra note __; Malloy, supra note __.

248 See Glenn S. Draper, Enforcing Lawyers’ Covenants not to Compete, 69 Wash. L. Rev. 161, 180-82 (1994).

solely on building their own practice and keeping their own clients, instead of finding ways that

the firm as a whole can benefit the client.

249

Moreover, it discourages law firms from training

their associates, since any time and money spent on training may be wasted when the associate

departs.

250

If the client-centered explanation lacks force, the reasons that cluster around lawyer autonomy

and maintaining the law as a profession are weaker. Certainly, a doctor or engineer has an equal

interest to a lawyer in choosing where and how she works. Similarly, I assume that the AMA

would agree that patients are not “chattels” and would decry that much of the medical profession

has been reduced to a business. Nevertheless, the AMA and doctors have found most courts

rather inhospitable to these arguments.

Further, insofar as courts sometimes invalidate noncompete agreements because of unequal

bargaining power,

251

it seems particularly ironic to provide a per se invalidation to lawyers. This

is especially so in the various cases which deal with agreements among partners in a law firm. In

sum, the differential treatment of lawyer noncompete agreements is probably best explained by

the desire of courts to uphold bar association rules, like Rule 5.6(a), as well as a fundamental

sympathy for the concerns of lawyer autonomy.

VII. Legal Malpractice

It is much harder to prove legal malpractice than medical malpractice. This is because the legal

profession has enjoyed several unique advantages as defendants to malpractice actions, and

because doctrinal changes that have been applied in medical malpractice have been barred or

adopted much more slowly in legal malpractice. Courts have justified many of these differences

on the now familiar ground that lawyers are distinct, and need distinct treatment.

252

Legal malpractice is generally treated as a tort action based in negligence.

253

Legal malpractice

requires a relationship establishing a duty of care, “skill and knowledge in providing legal

services to the client; a breach of that duty; and a connection of legally recognized causation

between the breach and resulting harm to the client.”

254

249 See Larry Ribstein, Ethical Rules, Agency costs, and Law Firm Structure, 84 VA. L. REV. 1707, 1735-39 (1998);

Ted Schneyer, Reputational Bonding, Ethics Rules, and Law Firm Structure: The Economist as Storyteller, 84 VA.

L. REV. 1777, 1793-94 (1998).

250 Robert Parker, Noncompete Agreements Between Lawyers: An Economic Analysis, 40 RES GESTAE 12, 15-18

(1996).

251 See, e.g., Sanborn Mfg. Co. v. Currie, 500 N.W.2d 161, 164 (Minn.Ct.App.1993) (noting the concern “that

employers and employees have unequal bargaining power” in non-competition agreements).

252 Legal and medical malpractice are generally governed by state law, so there will inevitably be variation among

the states on both torts. Unless noted otherwise this Article addresses the majority view of each tort.

253 Recently, the Supreme Court of Virginia decided that legal malpractice is solely based in contract law and thus

refused a plaintiff’s request for punitive damages. See O’Connell v. Bean, 556 s.E.2d 741, 742-73 (Va. 2002).

Virginia’s doctors are subject to punitive damages, as limited by a state statute. See Anand v. Allison, 55 Va. Cir.

261 (Va. Cir. Ct. 2001). Additionally, most jurisdictions bar damages for pain and suffering. See Lawrence W.

Kessler, The Unchanging Face of Legal Malpractice: How the “Captured” Regulators of the Bar Protect Attorneys,

86 MARQ. L. REV. 457, 478-91 (2002).

254 North Bay Council, Inc. v. Bruckner, 563 A.2d 428, 430 (1989) (Souter, J.).

The questions of duty and breach are proven by expert testimony and concern whether the

lawyer exercised the diligence and skill commonly demonstrated by lawyers in the locality.

255

A. Causation

The single biggest distinction between legal and medical malpractice is the requirements for

causation. In a legal malpractice action that arises from a botched litigation the aggrieved former

client must prove “but for” causation, i.e. that she would have been successful in the underlying

lawsuit except for the attorney’s malpractice.

256

This is what is known as the “case-within-the-

case” requirement: the legal malpractice plaintiff must first prove that she would/should have

won her underlying case, and then prove that she did not win the case because of the lawyer’s

malpractice.

257

The majority of courts add a second caveat as well: the plaintiff must prove that

she would have won the underlying judgment, and collected it.

258

The case-within-a-case

standard has been applied to other, non-litigation areas, like transactional malpractice claims.

259

The case-within-a-case standard is very, very difficult to meet theoretically and practically.

260

As a theoretical matter the plaintiff faces two huge issues of proof: proving the underlying

255 See Richard Maloy, Proximate Cause: The Final Defense in Legal Malpractice Cases, 36 U. MEM. L. REV. 655,

666 (2006). “Various courts have held that the locality may be the community, the county, or the state.” Wilburn

Brewer, Expert Witness Testimony in Legal Malpractice Cases, 45 S.C. L. Rev. 727, 757 (1994). This standard is

frequently more exacting for legal malpractice than medical malpractice, where the locality rule has been slackened

or abandoned. See Stephen E. McConnico, et al., Unresolved Problems in Texas Malpractice Law, 36 ST. MARY’S

L.J. 989, 1011 (2005) (The Texas legal malpractice “locality requirement for expert witnesses is in contrast to recent

Texas case law in the medical malpractice area. Experts regarding the standard of care in medical malpractice cases

do not necessarily have to practice within a particular locality, so long as they can demonstrate expertise with the

procedure performed . . . irrespective of locality.”).

256 See, e.g., Meredith J. Duncan, Legal Malpractice by any Other Name: Why a Breach of Fiduciary Claim Does

not Smell as Sweet, 34 WAKE FOREST L. REV. 1137, 1143-44 (1999).

257 See, e.g., Barnes v. Everett, 95 S.W.3d 740, 744 (Ark. 2003) (“To prove damages and proximate cause, the

plaintiff must show that, but for the alleged negligence of the attorney, the result in the underlying action would

have been different. In this respect, a plaintiff must prove a case within a case, as he or she must prove the merits of

the underlying case as part of the proof of the malpractice case.”). The case-within-a-case requirement is the rule in

the “vast majority” of states. See McConnico, et al., supra note __, at 1009 & n. 99 (2005). But see Vahila v. Hill,

674 N.E. 2d 1164, 1168-69 (Ohio 1997) (refusing to always apply the case-within-a-case standard).

258 See, e.g., Garretson v. Miller, 99 Cal. App. 4th 563, 568-69 (Cal. Ct. App. 2002) (explaining that California

follows the majority rule that a malpractice plaintiff must prove not only negligence on the part of his or her

attorney, but that “careful management of the case within a case would have resulted in a favorable judgment and

collection of same”). A minority of courts, however, have held that the burden should be on the defendant attorney

to prove (often as an affirmative defense) that the client's putative judgment was uncollectible. See Hoppe v.

Ranzini, 385 A.2d 913, 920 (N.J. 1978) (holding that the “burden of proof with respect to the issue of collectibility

should be upon the attorney defendants, notwithstanding the rule elsewhere that places that burden on plaintiff”).

259 “The majority of courts that have addressed this issue have determined that the ‘case within a case’ standard

does apply to transactional malpractice claims” and held that, for example, “a plaintiff must prove that an excluded

or unfavorable term in the underlying agreement would have been accepted by the other negotiating party if the

attorney had acted in accordance with his or her duty.” R. Todd Hogan & Franz Hardy, Defending the

Transactional Legal Malpractice Case: Trends and Considerations for Defense Counsel, 73 Def. Couns. J. 332, 333

& n. 3 (2006) (listing cases).

260 As Lawrence Kessler has aptly stated: “The rigid rules requiring the plaintiff to meet [the case within a case

standard] create an embarrassing aura of special treatment” in legal malpractice actions. Lawrence Kessler,

Alternative Liability in Litigation Malpractice Actions: Eradicating the Last Resort of Scoundrels, 37 SAN DIEGO L.

REV. 401, 492 (2000); Lester Brickman, The Continuing Assault on the Citadel of Fiduciary Protection: Ethics

malpractice, and then proving that she would have won in a trial of a totally distinct cause of

action. While causation is always an issue in any tort action, it is the central issue in legal

malpractice cases.

261

This is because causation requires the malpractice plaintiff to win two

trials: the original litigation and the later malpractice suit.

Proving the underlying case against the original attorney is obviously quite challenging. The

original attorney may know the facts, law, and weaknesses of the case backwards and forwards.

The original attorney also has access to client confidences, and despite what we learned earlier

about the sanctity of client confidences,

262

the Model Rules explicitly allow a lawyer to reveal

client confidences to defend a malpractice action.

263

Furthermore, if the attorney’s lax performance affected the discovery process, the malpractice

plaintiff may have an extremely hard time piecing the underlying evidence together years later,

especially when the original defendant is not a party to the malpractice action for purposes of

discovery.

While the case-within-a-case structure makes civil litigation legal malpractice claims quite

difficult to prove, criminal defense malpractice is even more challenging. In the great majority

of States a legal malpractice plaintiff who was a criminal defendant must prove more than the-

case-within-a-case: she must prove that she was actually innocent.

264

Furthermore, in most

jurisdictions a plaintiff cannot pursue a legal malpractice action unless the plaintiff has first

obtained post-conviction relief.

265

If that post-conviction relief is based on a claim of ineffective

2000's Revision of Model Rule 1.5, 2003 U. ILL. L. REV. 1181, 1193 n. 52 (2003) (calling the case-within-a-case a

“formidable, almost unsustainable burden”). Maloy, supra note __, at 677-93 provides a long list of cases that have

been dismissed under the case-within-a-case-analysis.

261 John Leubsdorf, Legal Malpractice and Professional Responsibility, 48 RUTGERS L. REV. 101, 148 (1995)

(“Much of the expense of legal malpractice litigation results from the ‘case-within-a-case’ doctrine.”).

262 See infra notes __ and accompanying text.

263 ABA RULE OF PROFESSIONAL CONDUCT 1.6(b)(5). Consider the following:

Rule 1.6 creates several moral double standards. It permits attorney disclosure of client confidences to

collect from the client a $500 fee. In comparison, the rule does not allow the attorney to protect the future

victim of a massive insurance or securities fraud. Moreover, Rule 1.6 recognizes the attorney's right to

"every man's evidence" and permits the attorney to sully the reputation of a living former client by

revealing potentially devastating personal information while defending against a claim of legal malpractice.

Yet the rule denies a potentially innocent third party defendant valuable evidence because that revelation

might besmirch the reputation of a deceased former client.

Brian R. Hood, The Attorney-Client Privilege and a Revised Rule 1.6: Permitting Limited Disclosure After the

Death of the Client, 7 Geo. J. Legal Ethics 741, 758-59 (1994).

264 See Joseph H. King, Outlaws and Outlier Doctrines: The Serious Misconduct Bar in Tort Law, 43 WILLIAM AND

MARY L. REV. 1011, 1030 (2002).

265 Meredith J. Duncan, The (so-Called) Liability of Criminal Defense Attorneys: A System in Need of Reform, 2002

B.Y.U. L. REV. 1, 30-31 & n. 159 (2002).

assistance of counsel, the odds of relief are slim indeed.

266

As such, legal malpractice for shoddy

criminal defense work is rare.

267

B.

Lost Chance

The strict treatment of causation in legal malpractice is in sharp contrast to the general loosening

of causation requirements in other areas of tort law. Perhaps the best example is the medical

malpractice doctrine of “lost chance.” Professor Joseph King describes the lost chance doctrine

as follows:

[W]hen a defendant tortiously destroys or reduces a victim's prospects for achieving a

more favorable outcome, the plaintiff should be compensated for that lost prospect.

Damages should be based on the extent to which the defendant's tortious conduct reduced

the plaintiff's likelihood of receiving a better outcome. . . . In other words, a plaintiff's

right to damages for the loss of a chance should not be restricted to situations in which

the plaintiff proves that it was more likely than not that he would have received a better

outcome in the absence of the tortious conduct.

268

While the logic of loss of chance applies in multiple areas of the law, in practice in America it

has been largely confined to medical malpractice cases.

269

In a medical malpractice case lost

chance can allow a finding of causation where strict but for causation would not. For example, if

a patient has cancer, and only has a 40% of survival, under strict rules of causation there is no

recovery when a late diagnosis reduces the odds of survival to 10%: it was more likely than not

that the plaintiff would have died regardless. Loss of chance allows a plaintiff to collect

damages for the lost chance, even if the original chance was not better than even. Loss of chance

has been controversial, but has been adopted in a majority of states for medical malpractice.

270

The applicability of loss of chance to legal malpractice is obvious, and multiple commentators

have suggested that loss of chance would ameliorate much of the unfairness of the case-within-a-

266 See DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM 78 (1999)

(arguing that the Strickland v. Washington standard for ineffective assistance of counsel "has proved virtually

impossible to meet").

267 See Duncan, supra note __, at 29-30. Legal malpractice for an appellate action is similarly difficult. If a lawyer

misses an appellate deadline a plaintiff must prove negligence and then the case-within-a-case. In appellate

malpractice the merits of the underlying appeal is ruled on as a matter of law by the new district court judge. See,

e.g., Gov’t Interinsurance Exch. v. Judge, 825 N.E. 2d 729, 735-36 (Ill. App. Ct. 2005). Because appellate cases are

rarely open and shut, and because the district court must essentially overrule a sister district or appellate court on an

issue of law or fact to meet the case-within-a-case requirement, appellate malpractice cases are also extremely hard

to win.

268 Joseph H. King, Reduction of Likelihood: Reformulation and Other Retrofitting of the Loss-of-Chance Doctrine,

28 U. MEMPHIS L. REV. 491, 492 (1998).

269 See Todd S. Aagard, Identifying and Valuing the Injury in Lost chance Cases, 96 MICH. L. REV. 1335, 1335 n. 5

(1998).

270 See Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 485 (Ohio 1996) (noting that a "majority of

states have adopted the loss-of-chance theory");

case requirement.

271

Nevertheless, the few courts to consider the issue courts have consistently

denied efforts to extend loss of chance to legal malpractice.

272

Legal malpractice has played a role in the development of loss of chance doctrine, however, as a

cautionary example of why it should not be adopted at all, or why it should not be expanded

beyond medical malpractice. For example, in Kramer v. Lewisville Memorial Hospital

273

the

Texas Supreme Court rejected “loss of chance” because it is doubtful that it “could prevent its

application to similar actions involving other professions . . . for example, [if] a disgruntled or

unsuccessful litigant loses a case that he or she had a less than 50 percent chance of winning, but

is able to adduce expert testimony that his or her lawyer negligently reduced this chance by some

degree, the litigant would be able to pursue a cause of action for malpractice under the loss of

chance doctrine.”

274

Similarly, judges have noted the potential application of loss of chance to

lawyers in dissenting to its adoption. In Perez v. Las Vegas Medical Center,

275

the Nevada

Supreme Court adopted “loss of chance” over Justice Steffen’s dissent’s argument that loss of

chance “would be equally just and applicable in such actions involving other professions,

including the legal profession.”

276

The psychology of these cases is quite striking. While courts all over the country have adopted

loss of chance for medical patients, the mere mention of applying it to lawyers is enough to

convince some judges not to adopt the doctrine at all. In particular, it is worth noting how

clearly the judges involved do not identify with the doctors; yet when legal malpractice comes up

the idea that a litigant, who would have lost anyway, could sue is viscerally wrong.

C. Burden-Shifting and Res Ipsa

271 See Polly A. Lord, Loss of Chance in Legal Malpractice, 61 WASH. L. REV. 1479 (1986); cf. RESTATEMENT

(THIRD) OF THE LAW GOVERNING LAWYERS § 53 cmt. b (suggesting that loss of a “substantial chance of prevailing”

may be recoverable, but citing foreign cases and dicta in one US case as support); but see John C.P. Goldberg, What

Clients are Owed: Cautionary Observations on Lawyers and Loss of Chance, 52 EMORY L.J. 1201, 1208-13 (2003)

(noting differences between legal and medical malpractice).

272 See Daugert v. Pappas, 704 P.2d 600 (Wash. 1985); cf. Beatty v. Wood, 204 F.3d 713, 718-19 (7th Cir. 2000)

(rejecting legal malpractice plaintiff’s argument “that his ADEA claim would have netted him money in a settlement

even if he could not have ultimately succeeded on the merits” and restating “but for” test). Plaintiffs have had some

limited success in avoiding the case-within-a-case by arguing for the reduced settlement value of a case, see

McConnico, et al., supra note __ at 1009-1010 (noting that a “few jurisdictions have allowed settlement value

damages” when “unique fact patterns are presented, and listing cases). Historically lawyers have been protected by

a rule of “judgmental immunity” regarding settlement advice. 7 AM. JUR. 2d Attorneys at Law § 201; 4 RONALD E.

MALLEN AND JEFFREY M. SMITH, LEGAL MALPRACTICE § 30.41 (5th ed. 2000). The majority of courts have thus

rejected potential settlement value in favor of the case-within-a-case, in part because holding otherwise renders

“professionals liable as guarantors, as almost all cases have some value.” 4 RONALD E. MALLEN & JEFFREY M.

SMITH, LEGAL MALPRACTICE § 32.8 (5th ed. 2000).

273 858 S.W.2d 397 (Tex. 1993).

274 Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397, 406 (1993). The dissent in Kramer countered this

argument by citing Daugert v. Pappas for the proposition that loss of chance could be, and has been, limited to

medical malpractice. See id. at 410 (Hightower, J., dissenting); see also Hardy v. Southwestern Bell Telephone Co.,

910 P.2d 1024, 1029 (Okl. 1996) (refusing to extend loss of chance outside medical malpractice context and noting

Daugert v. Pappas’ rejection of loss of chance for legal malpractice).

275 805 P.2d 589 (Nev. 1991).

276 Perez v. Las Vegas Medical Center, 805 P.2d 589, 599 n. 5 (Nev. 1991) (Steffan, J., dissenting); see also Dumas

v. Cooney, 1 Cal. Rptr. 2d. 584, 593 (Cal. App. 1991) (noting that “the lost chance theory has troubling

implications,” such as a possible application to lawyers).

One of the critical difficulties in proving a case-within-a-case is that much of the necessary

evidence concerning the underlying case resides in the exclusive control of the lawyer defendant.

Moreover, many of these cases involve missing a statute of limitations or failing to file a timely

appeal, so many legal malpractice actions face problems of lost or forgotten evidence at the time

of filing, let alone trial. In some cases the malpractice claimed may include a failure to pursue

discovery, which further exacerbates the evidentiary problems involved.

In similar situations where tort plaintiffs face evidentiary problems courts work hard to shift

burdens or adapt the negligence standards to allow cases to continue. In some cases where the

defendant’s actions caused the evidentiary difficulties courts have simply shifted the burden of

proof to the defendant. For example, in Haft v. Lone Palm Hotel

277

the California Supreme

Court shifted the burden of proof on causation to the defendant because “the absence of definite

evidence on causation was a direct and foreseeable result of the defendant's negligence.”

278

In

Summers v. Tice two defendants shot at and hit the plaintiff, but one shot caused almost all of the

damages. Because the plaintiff could not prove which defendant was liable the court shifted the

burden of proof on causation to the defendants.

279

Another classic example is res ipsa loquitor. Res Ipsa allows a plaintiff to establish a

permissible inference of negligence if: “(a) the event is of a kind which ordinarily does not occur

in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff

and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is

within the scope of the defendant's duty to the plaintiff.”

280

Res Ipsa is particularly appropriate

when the defendant has superior knowledge of the incident, i.e. when the defendant is in a better

position to prove or disprove causation than the plaintiff.

281

Shifting the burden of proof on causation would seem to be a natural response to the case-within-

a-case controversy because the defendant-lawyer is in a uniquely strong position to explain why

the plaintiff was likely to lose the underlying lawsuit regardless of the defendant-lawyer’s

negligence.

282

This is especially so because in each of these cases the lawyer accepted the

employment and pursued the case before it was allegedly lost through her incompetence. If the

case was a loser from the start, perhaps the lawyer who agreed to take the case should bear the

burden of proving it so. Nevertheless, res ipsa loquitor and other burden shifting techniques are

“generally inapplicable to legal malpractice cases.”

283

By contrast, res ipsa has been available in

277 478 P.2d 465 (Cal. 1970).

278 Haft v. Lone Palm Hotel, 478 P. 2d 465, 476 (Cal. 1970).

279 Summers v. Tice, 199 P.2d 1 (1948); see also Eric A. Johnson, Criminal Liability for Loss of Chance, 91 IOWA

L. REV. 59, 107 & n. 258 (2005) (discussing Summers v. Tice).

280 Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1071 (Pa. 2006) (quoting Rest. (Second) Torts §

328D); see also Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299 (Ex. Ch. 1863) (announcing original rule of res

ipsa loquitor).

281 See, e.g., Jerista v. Murray, 883 A.2d 350, 360 (N.J. 2005) (“The doctrine of res ipsa loquitur places a strong

incentive on the party with superior knowledge to explain the cause of an accident and to come forward with

evidence in its defense.”).

282 For a fuller version of this argument, see Kenneth G. Lupo, A Modern Approach to the Legal Malpractice Tort,

52 IND. L.J. 689, 694-95 (1977).

283 See Hacker v. Holland, 570 N.E.2d 951, 955 n. 5 (Ind. App. 1991); see also Berman v. Rubin, 227 S.E.2d 802,

805 (Ga. App. 1976) (“Res ipsa loquitur is simply not applicable to suits for legal malpractice.”).

medical malpractice since Ybarra v. Spangard was decided in 1944.

284

Further, courts have

generally resisted shifting the legal malpractice burden of proof on causation regardless of the

difficulties this burden places on plaintiffs.

285

D. Privity

The doctrine of privity was one of the pillars of tort law that eventually disintegrated in reaction

to the industrial revolution. In the nineteenth and early-twentieth century courts held that a

plaintiff must prove privity -- the equivalent of a contractual relationship -- with a defendant to

proceed in a product liability lawsuit. So, in the early English case of Winterbottom v. Wrighta

plaintiff who drove a mail coach manufactured by defendant, but bought by his employer, could

not sue the manufacturer for alleged defaults because the plaintiff lacked contractual privity with

the manufacturer.

286

This doctrine was translated to legal malpractice in National Savings Bank

of District of Columbia v. Ward.

287

Ward involved a factual scenario that remains quite familiar

today: the improperly performed title search.

288

Because the injured party was not the lawyer’s

client, however, the court dismissed the case for lack of privity.

289

Over the course of the early and mid-twentieth century the requirement of privity crumbled, and

third party liability for tortious conduct became the rule rather than the exception.

290

The privity

doctrine lasted longer in legal malpractice,

291

and the tests for third-party liability that replaced

the strict privity doctrine still pose substantial challenges to third party plaintiffs.

The area of trusts and estates has been particularly ripe for these types of controversies, because

the injured party is almost always not the client: the injured party is typically a decedent who

received less or nothing due to the lawyer’s negligence. The requirement of contractual privity

to bring a legal malpractice claim made will-drafting a virtual malpractice-free zone before the

privity requirement began to weaken in the 1960’s.

292

284 See Ybarra v. Spangard, 154 P.2d 687 (1944).

285 See Paul G. Kerkorian, Negligent Spoliation of Evidence: Skirting the “Suit Within a Suit” Requirement of Legal

Malpractice Actions, 41 HASTINGS L.J. 1077, 1079 (1990) (“It is surprising, however, to note that even when the

attorney's alleged negligence would make the client's proof of causation more difficult . . . the courts generally have

remained unwilling to alter the client's burden of proof for causation.”).

286 See Winterbottom v. Wright, 152 Eng. Rep. 402 (Ex. 1842) (“There is no privity of contract between these

parties; and if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by

the upsetting of the coach, might bring a similar action.”).

287 100 U.S. 195 (1879).

288 See Ward, 100 U.S. at 195-98.

289 Id. at 198-99 (holding that “[p]roof of employment and the want of reasonable care and skill are prerequisites to

the maintenance of the action” and that “in the case before the court the defendant was never retained or employed

by the plaintiffs”).

290 George S. Mahaffey, Jr., All for One and One for All? Legal Malpractice Arising From Joint Defense

Consortiums and Agreements, The Final Frontier in Professional Liability, 35 ARIZ. ST. L.J. 21, 43-45 (2003).

291 See John H. Bauman, 37 S. Tex. L. Rev. 995, 1004-14 (1996) (noting that “[s]ome commentators have noted, not

without amusement, that privity limitations persisted in the field of legal malpractice even as the courts lifted them

in other areas” and detailing history of privity requirement in legal malpractice); Charles W. Wolfram, A Cautionary

Tale: Fiduciary Breach as Legal Malpractice, 34 HOFSTRA L. REV. 689, 695 (noting that “[t]here or four decades

ago” legal malpractice actions were quite rare).

292 See Developments in the Law, Lawyers' Responsibilities to the Client: Legal Malpractice and Tort Reform, 107

HARV. L. REV. 1557, 1560-61 (1994) (“Prior to the 1960s, the ‘American rule’ was that attorneys would be liable for

There are several different ways that courts have allowed third-party legal malpractice suits.

California uses a multi-factor test.

293

Other states basically use the contract law of third-party

beneficiaries. If the primary purpose of the attorney-client relationship was to benefit the third

party, she is a proper legal malpractice plaintiff.

294

Some courts have found that third parties

may sue if their reliance upon the lawyer’s advice or actions was foreseeable.

295

The first thing to note about each of these doctrines is the extent to which they rely upon contract

or quasi-contract types of reasoning to establish third-party liability. The second thing to note is

that they are vastly narrower than traditional tort law of third-party liability, which generally

utilizes a broad foreseeability standard.

296

Last, doctors have fared much worse than lawyers on

third-party liability.

297

In fact, doctors and psychiatrists frequently find themselves on the

cutting edge of plaintiff-friendly foreseeability decisions.

298

Nevertheless, the states that apply one or all of these standards of third party liability are actually

the liberal states for purposes of legal malpractice. Nearly a hundred years after the American

law of privity was first reversed by Justice Cardozo’s opinion in MacPherson v. Buick Motor,

299

nine states retain a strict privity rule in legal malpractice actions.

300

Given that the privity

professional negligence only to those individuals with whom they established contractual privity -- or, in other

words, an attorney-client relationship. . . . The privity rule, however, sometimes operated to deny a cause of action

to the only party affected by the attorney's negligence. This result might happen if, for example, the attorney was

hired to draft a will for the express benefit of a third party not in privity of contract with the attorney.”).

293 Biakanja v. Irving, 320 P.2d 16, 19 (Cal. 1958)(considering “the extent to which the transaction was intended to

affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the

closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the

defendant's conduct, and the policy of preventing future harm”).

294 See, e.g., Pelham v. Griesheimer, 440 N.E.2d 96, 100 (Ill. 1982); Schreiner v. Scoville, 410 N.W. 2d 679 (Iowa

1987).

295 See Williams v. Ely; 668 N.E.2d 799, 805 (1996); Anthony E. Davis, Legal Opinion Letters and Audit Letters:

Minimizing the Risk, 227 N.Y. L.J. at 3 (July 1, 2002). For an overview of this case law, see RESTATEMENT (THIRD)

OF THE LAW GOVERNING LAWYERS § 51cmt. f and Reporter’s Notes.

296 See, e.g., W. Jonathan Cardi, Reconstructing Foreseeability, 46 B.C. L. REV. 921, 921-22 (2005). One exception

is torts that involve only economic loss, like negligent misrepresentation. In those cases courts take a more limited

view of third party liability, see RESTATEMENT (SECOND) TORTS § 552. Some will-drafting cases do resemble

negligent misrepresentation cases (when they deal with bad advice instead of bad drafting, for example).

297 See Dale L. Moore, Disparate Treatment of the Allocation of Power Between Judge and Jury in Legal and

Malpractice cases, 61 Temp. L. Rev. 353, 358-72 (1988).

298 See, e.g., Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 339-48 (Cal. 1976) (finding that a psychiatrist has

duty to warn third parties about dangerous patients when a "special relationship" exists between the doctor and

either the patient or victim); Gregory G. Sarno, Annotation, Liability of Physician, for Injury to or Death of Third

Party, Due to Failure to Disclose Driving-Related Impediment, 43 A.L.R. 4th 153 (1986) (detailing physician’s

liability to third parties for failure to warn about a medications side effects). Some courts have limited accountant

third-party liability in a manner consistent with lawyers, see Jay M. Feinman, Liability o Accountants for Negligent

Auditing: Doctrine, Policy, and Ideology, 31 FLA. STATE L. REV. 17, 20 (2003).

299 111 N.E. 1050 (N.Y. 1916); see also Murray H. Wright & Edward E. Nicholas, III, The Collision of Tort and

Contract in the Construction Industry, 21 U. RICH. L. REV. 457, 465-67 (1987) (noting rapid acceptance of

MacPherson, and that "[b]y 1966, the rule established in MacPherson had been adopted throughout the United

States”).

300 See Martin L. Fried, The Disappointed Heir: Going Beyond the Probate Process to Remedy Wrongdoing or

Rectify Mistake, 39 Real Prop. Prob. & Tr. J. 357, 384 (2004) (listing the nine States -- Alabama, Arkansas, Maine,

Maryland, Nebraska, New York, Ohio, Texas, and Virginia, and citing supporting statute (Arkansas) or cases).

requirement has fallen into widespread disuse in other areas of tort and has been subject to both

general derision and quite specific criticisms in the area of legal malpractice,

301

the fact that nine

states have retained it is quite striking.

The justification is the potential harm to clients if third-party liability were allowed and the fear

of unlimited liability for lawyers:

[T]he rule protects the attorney's duty of loyalty to and effective advocacy for his or her

client. While the testator/client is alive, the lawyer owes him or her . . . a duty of

complete and undivided loyalty. . . . [C]ourts [also] fear that absent the strict privity rule

there would be no limit as to whom a lawyer would be obligated. . . . In threatening the

interests of the attorney, the interests of potential clients may also be compromised; they

might not be able to obtain legal services as easily in situations where potential third

party liability exists.

302

This reasoning is striking on several levels. First, the reliance on protecting the wishes of the

original client is quite disingenuous in the area of wills, because the original client is dead and

can no longer sue the attorney. If, in fact, the third party is correct about the lawyer’s

malpractice it is hardly helpful to say that courts are protecting the original client’s interests,

when the work of the lawyer flies in the face of that client’s stated desires.

303

Second, note that the court relies on an original argument defending privity – the concern of

unlimited liability to third parties – that was rejected repeatedly as courts displaced the privity

requirement.

304

Yet somehow when the possibility of unlimited liability for lawyers is at issue

the court finds a serious and cognizable harm.

Third, the worry about clients is quite telling, as the same arguments have been utterly

disregarded in the doctor-patient scenario. The possibility of third party liability could certainly

affect the doctor-patient relationship or cause the doctor to worry more about third parties than

her own patients. Courts generally consider this effect a benefit of third party liability for

doctors and psychiatrists: the whole point of third party liability is to make doctors consider risks

301 See, e.g., Melvin A. Eisenberg, Third-Party Beneficiaries, 92 COLUM. L. REV. 1358 (1992).

302 Noble v. Bruce, 709 A.2d 1264, 1270 (Md. 1998); See also Robinson v. Benton, 842 So. 2d 631, 636-37 (Ala.

2002) (quoting Barcelo v. Elliott, 923 S.W.2d 575, 577-79 (Tex.1996)) (“At common law, an attorney owes a duty

of care only to his or her client, not to third parties who may have been damaged by the attorney's negligent

representation of the client. Without this ‘privity barrier,’ the rationale goes, clients would lose control over the

attorney-client relationship, and attorneys would be subject to almost unlimited liability. . . . This [rule ensures] that

attorneys may in all cases zealously represent their clients without the threat of suit from third parties compromising

that representation.”).

303

In some, or even many, cases the third party may have a specious claim. That is an issue for proof, however.

The blanket rule of privity means that even clearly meritorious claims of negligence are barred at the door.

304 Compare Winterbottom, 152 Eng. Rep. at 402 (worrying that “if th[is] plaintiff can sue, every passenger, or even

any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action.”)

with MacPherson v. Buick Motor Co., 111 N.E. 1050, 1058 (N.Y. 1916) (“Yet the defendant would have us say that

[there was only] one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a

conclusion. Precedents drawn from the days of travel by stage coach do not fit the conditions of travel today.”).

Note that given the intermediate third-party liability available under the negligent misrepresentation approach, see

infra note __, this argument is especially disingenuous.

outside the patient-doctor relationship. The relationship between a lawyer and client, however, is

so sacrosanct that future lawsuits by injured non-clients are barred out of the chance that

allowing those suits might disrupt the relationship.

Lastly, the worry that clients “might not be able to obtain legal services as easily in situations

where potential third party liability exists” is also one that has been explicitly rejected in other

tort areas, notably products liability and medical malpractice. One of the tort reformers favorite

criticisms is that court decisions have greatly reduced or eliminated access to health care and

certain products. Tort advocates consider this a feature of the system – unsafe products are

priced correctly or eliminated altogether.

305

Again, when lawyers are involved the courts are

suddenly worried that certain services will be unavailable to clients.

306

E. The Rules of Professional Conduct

As noted earlier, one of the keys to the success of the legal profession’s self-regulation was the

weight that State Supreme Courts have given to the ABA’s Model Rules of Professional

Conduct. Because courts have adopted the Rules as the governing conduct regulations for the

profession and have used the Rules to decide cases in areas as diverse as noncompete agreements

among lawyers, lawyer advertising, and client confidences, the Rules are much closer to a set of

binding statutes or regulations than general guidance to lawyers.

This is true, of course, with the exception of malpractice actions. The “preamble and scope”

section of the Model Rules states quite clearly that “[v]iolation of a Rule should not itself give

rise to a cause of action against a lawyer nor should it create any presumption in such a case that

a legal duty has been breached.”

307

Courts have been mixed in how they apply the Rules in malpractice actions. The majority of

courts have presented a compromise position: the Rules cannot stand in as the duty of care and a

violation of the Rules is not negligence per se, but they can be considered as evidence of a

breach.

308

A few courts have allowed the Rules to inform the duty of care question more

directly, some by creating a rebuttable presumption of a breach of duty if the Rules are

violated.

309

On the flip side, some courts have held that the Rules of Professional conduct are

flatly inadmissible in a legal malpractice action.

310

Notably, lawyer-defendants always “retain

the right to introduce ethical standards in defense of their actions.”

311

305 See Benjamin H. Barton, Tort Reform, Innovation, and Playground Design, 58 FLA. L. REV. 265, 274-77 (2006)

(discussing the tort reformers arguments and the defenders’ arguments).

306 This same justification has been used to reject damages for pain and suffering in legal malpractice actions. See

Kessler, supra note __, at 488-91.

307 ABA MODEL RULES OF PROFESSIONAL CONDUCT Preamble and Scope.

308 See Marc R. Greenough, The Inadmissibility of Professional Ethical Standards in Legal Malpractice Actions

after Hizey V. Carpenter, 68 WASH. L. REV. 395, 400 (1993).

309 Evans v. Dickstein, 2005 WL 1160621, at *1 (Mich.App., May 17, 2005) (“This Court has previously rejected

the argument that violation of the Rules of Professional Conduct is negligence per se. Instead, this Court has favored

the proposition that a violation of the Rules of Professional Conduct is rebuttable evidence of malpractice and does

not relieve a plaintiff ‘of the obligation to present expert testimony.’” (quoting Beattie v. Firnschild, 394 N.W. 2d

107, 109 (1986)).

310 See Ex parte Toler, 710 So.2d 415, 416 (Ala.1998); Orsini v. Larry Moyer Trucking, Inc., 833 S.W.2d 366, 369

(Ark. 1992); Hizey v. Carpenter, 830 P.2d 646, 653-54 (Wash. 1992). Courts have also held that the Rules can

Overall, the structure and treatment of legal malpractice further establishes that judges have

analyzed and designed the tort with a unique understanding of, and sympathy for, the lawyer

defendants before them -- a clear example of the lawyer-judge hypothesis. The law is noticeably

more favorable to lawyers than other professions, and even in the areas where legal malpractice

has begun to catch up, it lags other areas of the law significantly, and outlier courts remain.

VIII. Ramifications?

At this point I hope that some or all of you are convinced that the lawyer-judge hypothesis

explains a diverse subset of cases and doctrines that directly effect the legal profession.

Assuming you are convinced, you may still ask “so what?” It may be that while judges treat

lawyers differently and better, this treatment is justified. Maybe lawyers are, in fact, special.

Lawyers do play an important role in our society and legal order, but does that justify certain

jurisprudential latitudes? To me it is self-evidently insalubrious to have the judiciary favor one

group of persons over others. Further, the collection of regulatory and case law advantages listed

above are hardly calibrated to further the lawyer’s role as an officer of the court.

312

Assuming the phenomenon exists, and it is bad, can anything realistically be done about it?

First, gathering the cases, making the argument, and shedding light on the trend may be enough

to shift the law in some of these areas. As Part I’s discussion of the underlying theory noted,

some or all of this effect is the result of unconscious judicial bias toward their own experiences

and naturally increased empathy for litigants who share similar backgrounds and experiences.

Perhaps pointing out the cumulative effects of these unconscious decisions will lead to some

reforms.

Second, it may be that our system of selecting judges from the ranks of lawyers is the best

possible model for our legal structure and society, and therefore the costs associated with it are

bearable. Again, recognizing those costs and weighing them against the benefits is worthwhile.

On the other hand, it may be that the costs of the current system outweigh the benefits. Given

the general public distrust and dislike of lawyers there may be many other objections to their

dominant role in the judiciary aside from any bias towards lawyers in general.

I do not think it is obvious that all judges should be lawyers. To the contrary, it may be right that

no lawyers should be judges. In many civil law countries judges are trained and educated

separately from lawyers.

313

Perhaps that is a better model.

never be used to support a third-party suit. See Brody v. Ruby, 267 N.W.2d 902 (Iowa 1978); Hill v. Willmott, 561

S.W.2d 331 (Ky.App.1978); Spencer v. Burglass, 337 So.2d 596 (La.App.1976); Friedman; Drago v. Buonagurio,

386 N.E.2d 821 (1978).

311 Developments in the Law, supra note __, at 1567.

312 Cf. Barton, Economic Analysis, supra note __, at 477-81 (rejecting a similar justification for biased lawyer

regulations).

313 Charles H. Koch, Jr., The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal

Systems, 11 IND. J. GLOBAL LEGAL STUD. 139, 142-45 (2004) (describing and praising civil law system for training

judges separately from lawyers).

Moreover, the idea that only lawyers should be judges is of relatively recent vintage in the

United States. In the 18

th

, 19

th

, and early 20

th

century many judges and justices of the peace were

not lawyers (and many current justices of the peace are still non-lawyers).

314

Predictably, bar

associations were at the forefront of the (largely successful) effort to eliminate lay judges.

315

These efforts occurred simultaneously to the bar’s overall professionalization movement that

included the push for a bar examination, required legal education, and the unified bar. Given the

potential benefits to the profession, and the key role that the judiciary played in the success of the

professionalization movement, bar associations clearly made a wise choice.

Aside from history and international precedents, Adrian Vermeule has recently argued that there

should be at least one non-lawyer Justice of the U.S. Supreme Court, and possibly more.

316

Nonlawyer judges can also be defended on populist or egalitarian grounds.

317

It is beyond the

scope of this article to build a complete defense or indictment of the primacy of lawyer judges.

Instead, I will note that it does add another wrinkle to a larger ongoing debate about the structure

and nature of our judiciary.

Nevertheless, the lawyer-judge hypothesis established herein proves that lawyers have enjoyed

preferential treatment. The severity of the problem and what should be done about it, if

anything, are ultimately issues for further contemplation and study.

314 For some historical descriptions of non-lawyer judges, see JOHN P. DAWSON, A HISTORY OF LAY JUDGES (1960);

Robert Little, Don’t Miss a Move, TENN. B.J., March, 2001, at 12 (“The frontier era criminal defendant was faced

with an available Justice of the Peace, usually a non-lawyer, or an unavailable Circuit Court judge, a circuit rider

covering multiple counties.”) and John Phillip Reid, Controlling the Law: Legal Politics in EARLY NATIONAL NEW

HAMPSHIRE 22 (2004) (noting that two of the three Justices of the 1798 New Hampshire Supreme Court were

ministers, not lawyers). For a discussion of the prevalence of current non-lawyer judges see Adrian Vermeule,

Should We Have Lay Justices (working draft on file with author) 3 & n. 7; Goodson v. State, 991 P.2d 472, 444-45

(Nev. 1999) (holding that a misdemeanor trial before a non-lawyer Justice of the Peace was constitutional).

315 See DORIS MARIE PROVINE, JUDGING CREDENTIALS: NONLAWYER JUDGES AND THE POLITICS OF

PROFESSIONALISM 1-60 (1986); PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF

JUSTICE, THE COURTS, TASK FORCE REPORT (1967). There are some great old articles and speeches by scions of the

bar denouncing justices of the peace. See, e.g., Chester H. Smith, The Justice of the Peace System in the United

States, 15 Cal. L. Rev. 118, 140-41 (1927) (calling lay judges an “anachronism in our jurisprudence the perpetuation

of which cannot be justified”); SIMEON BALDWIN, THE AMERICAN JUDICIARY 129 (1906) (“The weakest point in this

system of judicial organization is the vesting of jurisdiction of small civil causes in justices of the peace.”); Roscoe

Pound, The Administration of Justice in the Modern City, 26 Harv. L. Rev. 302 (1912-13) (same).

316 The U.S. Constitution prescribes minimum age and citizenship qualifications for Congressmen, Senators, and

Presidents, U.S. Const. art. I, § 2, cl. 2 (Representatives); id. § 3, cl. 3 (Senators); id. art. II, § 1, cl. 4 (Presidents),

but imposes no particular qualifications for federal judges. Vermeule argues that because non-lawyers would bring

different expertise to deciding cases the overall quality of the judgments would rise. See Vermeule, supra note __.

317 See Vermeule, supra note __, at 6.