Phil Cole has authored an ebook in a series published by ExecSense, Digital Thought Leadership. Phil’s ebook is titled “The Immunities of Lawyers.” Below is an excerpt of the ebook. Read the full ebook.
Lawyers are granted unique protections against civil liability under a variety of state and federal statutes and principles of common law going back as far as six centuries. These laws grant privileges and immunities to lawyers that shield them from liability for the purpose of preserving the lawyer’s independence and zeal in the pursuit of a client’s interest. Except in the unique example of a public defender, lawyers are not immunized from liability to their clients for errors and omissions, but the burdens of proving liability are significant even in such cases because of enhanced rules for proving causation and the broad latitude extended to lawyers – and other professionals – for judgmental decisions.
The immunity of lawyers from civil liability for actions within their professional role is not easy to pigeonhole in a sentence or two. State and federal jurisdictions, while generally agreeing on the broad policy interests that support immunities for lawyers, can and often do vary in the application of, and the crafting of exceptions for, the various doctrines. Sometimes, as shown in the example of the Federal Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq, the immunity doctrines are avoided by simply recharacterizing the lawyer as something else when in fact the lawyer is acting in the most classic of lawyer activities, representing a client in collecting a debt. In the case of the FDCPA, the lawyer becomes a “debt collector” and is accordingly stripped of all litigation and transactional immunities. The lawyer as debt collector is not differentiated in exposure to statutory liability from his lay counterpart in debt collection. Lawyers who involve themselves as participants in a client’s business dealings directly hazard such an unfavorable redefinition of their role when litigation ensues.
Given the doctrinal complexity and the growing pressure in litigation to expand lawyer liability, it is important for professional liability litigators to possess a strong grasp of the general rules, the major jurisdictional differences or exceptions, and the basic concepts that support the maintenance of the privileges and immunities extended to the legal profession.