Posted by
NOTLEGALROADKILLYET on Tuesday, December 26, 2006 9:49:25 PM
Since there isn't a lot of legal news on the day after Christmas, tonight is a good time to do an essay on the difference between tort reform and legal ethics reform, and why legal ethics reform might be more effective.
1. Tort reform is a movement to limit both tort litigation and damages. With some exceptions, tort reform is targeted to particular kinds of lawsuits. For example, about a week ago I wrote about the successes and failures of medical malpractice reform. West Virginia had a very good experience. On the other hand, the Oklahoma Supreme Court devised a mechanism to protect Trial attorneys by throwing out the mechanism that had worked for West Virginia, claiming that it benefited insurance companies.
2. Tort reform almost always benefits well organized and wealthy professions and insurance companies. That is not to say that the benefits of tort reform do not flow down to less wealthy citizens, because they do. Had West Virginia not elected to establish a system of medical malpractice in 2000, it was in danger of seeing its obstetricians leave the state en masse. Citizens of States which have modified their automobile accident laws have seen a lowering of insurance rates.
3. Trial Lawyers would argue that all tort reform is bad. They play up their role in society to hold bad acting companies responsible, while playing down their desire to get wealthy in the process. Some lawsuits are pure fraud, and some trial lawyers are fraudsters who don't think twice about putting on false testimony or false evidence to sway a jury. That said, some forms of tort reform are bad. Colorado recently made it very difficult for home buyers to sue builders in an apparent effort to put a stop to a successful trial lawyer who was claiming that every lawsuit he was litigating involved builder fraud. That simply isn't possible, but the fix was as bad or worse than the problem. Now, buyers with legitimate grievances lack the consumer protection available in every other state.
Legal ethics reform means installing a system which ensures that the legal ethics rules are effectively enforced. For example, if an attorney thought that he would permanently lose his license if he were caught allowing, let alone encouraging false testimony, fraudulent lawsuits would nearly disappear. Likewise, if a judge thought he might lose both his position and his license if he tolerated misconduct by an attorney, he would lose his incentive to give crooked attorneys a free pass.
Legal ethics reform also must include putting teeth in the perjury laws. Currently, there are no real penalties for perjury in civil lawsuits, a situation which invites fraudulent lawsuits.
Unlike tort reform, which partially protects selected wealthy sectors of the economy, legal ethics reform protects everyone. It can be accomplished by either policing the legal profession with outsiders, or by using the tort weapon to force the bar associations to police themselves. Legal ethics reform has the potential to eliminate judges who engage in judicial misconduct or, who tolerate misconduct by attorneys and other judges. Tort reform advocates can not claim that any reform they might propose will cause judges to act ethically.
Politicians can be expected to dislike legal ethics reform because a targeted tort reform approach yields many millions in campaign contributions. They would have little interest in a one time legal ethics reform fix that solved the problem. If you disbelieve that statement, look at the Congressional record on tax reform. While an occasional Congressman suggests an overhaul, tax code reform never goes anywhere because dispensing individual tax code favors is a cash cow for both parties.
This is a problem that must be solved through the initiative process. Whether and when true legal ethics reform will happen remains to be seen.