Michael Moffitt, ‘Settlement Malpractice’

Lawyers routinely settle lawsuits or advise their clients about settlement. One might expect, therefore, that clients routinely complain about some aspect of their lawyers’ settlement services. Ten years of data from eleven jurisdictions paint a vivid, different picture: although the vast majority of civil lawsuits are resolved through negotiated settlements and although complaints against lawyers are common, fewer than 1% of reported legal malpractice cases and only about 1.5% of Bar complaints relate in any way to lawyers’ settlement-related conduct or advice. Even in those instances when clients do raise such complaints, clients rarely prevail. In short, even though lawyers play a prominent role in settlement, lawyers currently operate with no meaningful exposure to complaints about this important aspect of modern practice. Why do lawyers enjoy this level of de facto immunity? The current legal malpractice system operates on three basic assumptions about lawyering …

Moffitt, Michael L, Settlement Malpractice (March 22, 2019). University of Chicago Law Review, Forthcoming.

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