From: Benjamin Zipursky <>
Date: 10/11/2009 14:34:23 UTC
Subject: Re: legal ethics

Your question about how to integrate legal ethics and torts is of great interest to me.  

I think there are a number of legal ethics issues that can be brought into a torts class, although I confess that I do not integrate them as well or as consistently as I think I should.   Here is a sampling of some of the tort/legal ethics issues that I think are of significant interest even apart from the pedagogical directive you have received.   They are, to different degrees, possible and valuable to bring into class.   [N.B. Some will cross national borders better than others.]  

1. Duties to non-clients in legal malpractice claims.   It is not just intended beneficiaries of wills who now sue lawyers for negligently drafting the will.   There is a range of cases, including also those providing opinion letters for a transaction in which non-clients are involved.   These raise interesting conflict of interest questions in legal ethics and they raise interesting questions on the "duty" element of negligence.  

2. Duties of candor to the tribunal in settlement of a personal injury claim.   The American classic Spalding v. Zimmerman , 116 N.W.2d 704 (Minn. 1962) is a great case of this nature.

3. Aggregate litigation and settlement.   This happens to be an issue currently of great importance to the American Law Institute and its Aggregate litigation project.   As is well known, the asbestos litigation in the U.S. has been difficult to bring to any closure because of conflicts of interest problems that were said (by the U.S. Supreme Court, rightly in my view) to present an obstacle to class certification under the Federal Rules.   Less well known, but currently more important, is the cluster of legal ethics problems that bedevil lawyers for both sides when they try to settle non-class aggregate litigation, like the Vioxx litigation.   The big question is whether the system does or should permit a plaintiff's law firm that has a raft of 1,000 personaly injury clients -- not part of a class -- from making a package deal with the defendant without really providing each client any say in whether he or she accepts the terms of the settlement.   The obvious answer is that this is impermissible, as ethics rules now stand.   The interesting question is whether lawyers should be permitted to have their clients authorize such settlement in advance (with certain conditions), when they sign a retainer agreement.  

4. A variety of questions about the morality of extended motion practice and onerous discovery requests and claims of privilege will be more easily appreciated in torts case, in my view, than in many other contexts.

5. There are currently, in the U.S., disputes about whether tort claims should be assignable and whether "maintenance" and "champerty" should be permitted.   These are also legal profession/ethics/torts issues.

6. Perhaps this is more political and constitutional than ethical, but I think it is of interest to students: should a defense lawyer presenting actuarial testimony about diminished (or eliminated) future earnings of an injured (or deceased) plaintiff put forward statistics that are gender-based or race-based (e.g., plaintiff Smith would not have earned as much as a physician as the average in the twenty professional years she lost because of the injury defendant inflicted, because women physicians earn less than average).   Most defense lawyers will be careful not to use such words, of course, but their experts may well provide actuarial data that in essence makes the same point.    

I hope this is of some help.


Ben Zipursky

Fordham Law School

New York, NY

>>> Vaughan Black <> 11/09/09 10:24 AM >>>

Colleagues, I would be interested in hearing suggestions of fruitful avenues for

introducing questions of legal ethics and professional responsibility in a torts


When I used to teach contracts I found this pretty easy. For instance one might

identify a contractual term that would be ineffective against consumers and

then raise the question of whether it would be ethical for a contract drafter

to include such a term in a standard-form contract (knowing that some consumers

would read the term and think they were bound by it, even though they were not).

The institution I teach at says that I am supposed to bring discussions of

lawyers' ethics into the classroom in my substantive courses, but in my

teaching of torts (which mostly involves analysis of appellate cases in the

tort of negligence) I have not found it easy to identify good occasions for