TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, February 22, 2010

Bernstein on "Pervading"

Honored to be here for a guest post.  In choosing my topic, I’ve decided to forgo the chance to, ahem, promote my own recent torts publications and instead write in response to the request I’ve heard most often from colleagues over the years:  Any suggestions of how a Torts instructor can integrate professional responsibility or legal ethics into this course?


This question broaches the pervasive method.  Professional responsibility folks have long debated the issue of venue: Should this subject occupy its own course, or instead pervade a larger curriculum?  I’ve expounded on the issue elsewhere, referring to the pioneering pedagogy that Deborah Rhode staked out decades ago.  For now let’s assume that you are interested in making occasional references to legal ethics or professional responsibility issues as they are presented by the material you cover in your Torts class.


Disclaimer:  I am not necessarily advising you to do so.  Everything we put into our classes displaces something else we could do with the same unit of time.  No matter which political ideologies we hold, we all believe in the microeconomics tenet of scarcity!


That said, it’s nice to gain an option.  So I’ve gathered a half-dozen torts-and-professional- responsibility points that won’t demand too much preparation effort or time in class. They have the almost paradoxical virtue of making what you do in class more theoretical and more hands-on practical. You can emphasize either aspect.  

1.    The contingent fee.  Whenever your text includes a case with a plaintiff who appears to lack wealth, you can tell students how personal injury lawyers typically get paid for their work.  From there, mention ethics issues that accompany the contingent fee, which is an attorney’s gamble that prosecuting a tort claim for a client will pay off.  And from there…


2.    … you can introduce conflicts of interest between lawyer and client by asking which conditions would make a lawyer want to settle while a client wants to press on toward trial.  Then ask what would make a lawyer want to go to trial while the client prefers fast cash.  You might be surprised—at least I’ve been surprised—to hear first-year students argue that the lawyer’s preference should prevail.


3.    Truth versus partisanship.  Do plaintiffs tell the truth under oath about, say, their own lack of comparative negligence?  For scrutiny of the other side of the caption, you can use cases involving entity defendants, which invite attention to concealment of evidence and well-financed stonewalling.


4.       Solicitation.  Students often don’t know that a lawyer may not approach an injured stranger and offer to represent this person in pursuit of legal redress for the injury.[1]  I’ve long been fascinated by this prohibition (and have explored what it has, and doesn't have, in common with the criminalization of solicitation in the context of street prostitution).  The ban seldom emerges from cases in a Torts text, but you can often find it just below the surface.  For example, in the book I now use, one decision speaks disparagingly of plaintiffs’ experts, implying that they had tried to use dishonest boilerplate affidavits.[2]  Rejection of their testimony can open a conversation about mass torts as lawyer-driven business enterprises rather than responses to the needs of hurt individuals.


5.    Witness coaching.  Consider the way judicial authors use “the facts” to support the decisions they make to permit or bar recovery in tort.  How do these judges know what happened?   Many of the cases in your text will be appellate opinions reviewing lower court judgments following a trial.  This case law may raise the possibility that witnesses (especially plaintiffs) were coached by their attorneys.  I recommend the law review article by Bill Hodes defending this practice.  His thesis, which you can summarize in class, is provocative.[3]


6.    Tort liability for attorney misbehavior. Sometimes Torts gives students the impression that anybody can sue anybody for anything.  It can be refreshing to turn this plenary breadth against our own occupation.  The Goldberg, Sebok & Zipursky text that I use gives instructors an early opportunity to raise the subject by presenting duty—including the limited duty to prevent economic loss—up front.  Another convenient point to raise this issue arises when you reach a medical malpractice case.  “That’s medical malpractice,” you can say by way of opening a discussion.  “What would be legal malpractice?  How might a lawyer cause injury by failing to fulfill the standard of care?”  Tort liability for “abuse of process” and “malicious prosecution” can come up later, if you so desire.


- Anita Bernstein

Anita and Stuart Subotnick Professor of Law

Brooklyn Law School 

[1] A couple of jurisdictions do permit this overture.

[2] John C.P. Goldberg, Anthony J. Sebok, & Benjamin C. Zipursky, Tort Law: Responsibility and Redress 242 (4th ed. 2008) (reprinting Aldridge v. Goodyear Tire & Rubber Co., 34 F. Supp. 2d 1010 (D. Md. 1999)).

[3] W. William Hodes, The Professional Duty to Horseshed Witnesses--Zealously, Within the Bounds of the Law, 30 Texas Tech. L. Rev. 1343 (1999).

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Very good topic! I teach both Torts and Professional Responsibility and I do try to bring in PR issues into our discussion of torts doctrine whenever I can. If I may, I'd like to add to your suggestions.

1. As to number 2 on your list, it is also very interesting to talk about the issues related to "secret settlements." How should we deal with the fact that defendants sometimes offer more money as part of a settlement if the plaintiff and her lawyer agree to keep all the information about the case confidential and this may increase the risk that others might get injured?

2. The ethics of whistleblowing and corporate client counseling. When talking about risk/benefit analysis and the Pinto case withing our discussion of products liability, it is intersting to talk about whether an attorney should blow the whistle on a client if the lawyer knows the client is doing something that creates unreasonable risks to others.

(I have to admit, though, I often don't have time to address these two because I do products at the end of the year and usually find myself running out of time...)

3. Confidentiality. When discussing the standard of care that applies to attorneys I give them a written problem based on a case called Hawkins v King County, where, as in Tarasoff, the attorney gets some information that suggests the client may be dangerous to others. The hypo helps them work on analogizing and distinguishing Tarasoff and applying torts principles as they relate to the duty of confidentiality.

4. The disciplinary system and the concept of competence. When we cover legal malpractice I quickly explain the concept of discipline and how both the disciplinary system and tort law liability operate as ways to regulate the profession.

5. Duties regarding frivolous litigation. When explaining how to construct legal arguments, I mention the fact that arguments can be so weak as to be considered frivolous and then quickly exmplain the possible consequences of bringing frivolous claims.

6. Related to coach preparation and issues of credibility, if I have a chance I also mention the problem of perjury.

This sounds like a lot, but in reality most of it refers to quick comments by me as we discuss the material. It does not take a lot of time or become a distraction.

Posted by: Alberto Bernabe | Feb 22, 2010 12:54:00 PM


I teach Professional Responsibility at GULC and I am an ethics prosecutor in the DC Office of Bar Counsel. Before that, I was a sole practitioner for 17 years.

Torts and Professional Responsibilty go together quite well. Of all lawyers, personal injury lawyers are among those who most often handle other people's money. When they get into an ethical bind, it is usually because they have mishandled a client's money. That is why, in my PR class, I make a special effort to teach my students the boring details of accepting a personal injury case; working it up; negotiating with a claims adjuster; settling (to include getting the client's authority to settle); depositing settlement proceeds in an escrow account (not an operating account); and disbursing proceeds to the client, others who have an interest in the proceeds (medical providers), and finally taking the lawyer's fee out of the settlement proceeds. I always have at least one exam question requiring the student to explain this process.

Of course, issues of competency, diligence, communication, and honesty are all tightly bound up in the torts process as well.

Posted by: Joe Bowman | Feb 24, 2010 6:51:10 AM

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