Is it time for lawyer profiles?

Fordham Law Review

Volumn 70, Issue 3, 2001, Pages 645-688

  Berenson, Steven K ^a  

^a NONE

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EID: 0346491829     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (380)

1. See, e.g., Katherine Karlsrud, Choosing Healthcare For Your Baby, Lamaze Parents Magazine, Fall/Winter 1999, at 94.
2. Michaela Remy Sampson Berenson, b. Jan. 12, 2001.
3. See Karlsrud, supra note 1, at 96.
4. Florida Department of Health, Florida Practitioner Profile Web site, http://www.doh.state.fl.us/mqa/Profiling/index.html (last visited Oct. 15, 2001).
5. Fla. Stat. ch. 456.041 (2001).
6. Id.; see also id. ch. 456.039.
7. Id. ch. 456.039(1)(a)1-8.
8. See id. chs. 456.041(4), 458.320.
9. Id. ch. 456.041(4). The statute dictates that any information regarding professional liability actions be accompanied by the following language: "Settlement of a claim may occur for a variety of reasons that do not necessarily reflect negatively on the professional competence or conduct of the practitioner. A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred." Id.
10. See id. ch. 456.039(5).
11. To find out how the rest of our pediatrician selection process went, how the above-described information factored into our final decision, and what that decision was, see infra Conclusion.
12. See infra Part I.
13. See infra Part II.
14. See infra Part II.A.
15. See infra Part II.B.
16. See infra Part III.
17. See infra Part III.A.
18. See infra Part III.B.
19. See infra Part III.A.
20. See infra Part III.B.
21. See infra Part III.C.1.
22. See infra Part III.C.2.
23. See, e.g., Roger C. Cramton, Delivery of Legal Services to Ordinary Americans, 44 Case W. Res. L. Rev. 531, 541 (1994); Linda Morton, Finding a Suitable Lawyer: Why Consumers Can't Always Get What They Want and What the Legal Profession Should Do About It, 25 U.C. Davis L. Rev. 283, 284 nn.1-2 (1992) (citing sources).
24. See, e.g., Roger C. Cramton, Delivery of Legal Services to Ordinary Americans, 44 Case W. Res. L. Rev. 531, 541 (1994); Linda Morton, Finding a Suitable Lawyer: Why Consumers Can't Always Get What They Want and What the Legal Profession Should Do About It, 25 U.C. Davis L. Rev. 283, 284 nn.1-2 (1992) (citing sources).
25. Morton, supra note 23, at 284 & nn.1-2; see also Here's How We Find Lawyers, The Orlando Sentinel, Mar. 7, 2001, at B7.
26. Morton, supra note 23, at 284 & nn.1-2; see also Here's How We Find Lawyers, The Orlando Sentinel, Mar. 7, 2001, at B7.
27. Martindale-Hubbell publishes the longest standing, best known, and most widely used directory of lawyers published in the United States. The company currently offers its directory over the Internet, http://www.lawyers.com, and in traditional print format, The Martindale-Hubbell Law Directory (2001).
28. Yankelovich, Lawyers in America: How We Choose Them, Use Them, and Sometimes Lose Them 26 (December 2000) (unpublished manuscript, on file with author) [hereinafter Lawyers in America]. The survey, based on interviews with 1001 adults chosen through random-digit dialing, was conducted by Yankelovich on behalf of Kaplow Communications and Lawyers.com, the Internet division of Martindale-Hubbell. See Lawyers in America, supra, at 3.
29. Id.
30. Id. at 8.
31. Id. at 24.
32. The term "Professionalism Paradigm" is taken from an important and influential article by Russell Pearce. See Russell Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229, 1230 (1995). Pearce, in turn, borrowed the concept of a "paradigm" from a groundbreaking book by Thomas S. Kuhn. See Thomas S. Kuhn, The Structure of Scientific Revolutions (3d ed. 1996). have discussed Pearce's article in greater detail elsewhere. See Steve Berenson, Politics and Plurality in a Lawyer's Choice of Clients: The Case of Stropnicky v. Nathanson, 35 San Diego L. Rev. 1, 35-46 (1998).
33. The term "Professionalism Paradigm" is taken from an important and influential article by Russell Pearce. See Russell Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229, 1230 (1995). Pearce, in turn, borrowed the concept of a "paradigm" from a groundbreaking book by Thomas S. Kuhn. See Thomas S. Kuhn, The Structure of Scientific Revolutions (3d ed. 1996). have discussed Pearce's article in greater detail elsewhere. See Steve Berenson, Politics and Plurality in a Lawyer's Choice of Clients: The Case of Stropnicky v. Nathanson, 35 San Diego L. Rev. 1, 35-46 (1998).
34. The term "Professionalism Paradigm" is taken from an important and influential article by Russell Pearce. See Russell Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229, 1230 (1995). Pearce, in turn, borrowed the concept of a "paradigm" from a groundbreaking book by Thomas S. Kuhn. See Thomas S. Kuhn, The Structure of Scientific Revolutions (3d ed. 1996). have discussed Pearce's article in greater detail elsewhere. See Steve Berenson, Politics and Plurality in a Lawyer's Choice of Clients: The Case of Stropnicky v. Nathanson, 35 San Diego L. Rev. 1, 35-46 (1998).
35. Pearce, supra note 30, at 1238. Pearce describes the Professionalism Paradigm in terms of a bargain between the profession and society: The profession agrees to use its specialized knowledge and skills for the benefit of its clients (or patients) and the public at large, and society, in turn, agrees to grant to the profession an exclusive right to practice the profession, free from government, and to some extent, market control. Id.
36. Id. at 1239. The other two fundamental conditions that Pearce identifies as underlying the Professionalism Paradigm are altruism, the notion that the profession will place its clients' and the public's interest ahead of its own financial and other self-interests, and autonomy in the form of self-regulation by the profession. Id. at 1239-40.
37. For example, doctors must complete at least four years of medical school training and a year-long internship, and pass three parts of the national licensing examination, before they are considered minimally qualified to practice medicine in any of the 50 states. See In Re Boston Medical Center Corporation, No. 1-RC-20574, 1999 WL 1076118, at *1-3, *16, *33 (N.L.R.B. Nov. 26, 1999) (discussing medical education in the context of holding that medical interns, residents, and fellows are "employees" for purposes of the National Labor Relations Act). Similarly, lawyers must graduate from an accredited law school and pass a state bar examination to be eligible to practice law. See, e.g., Geoffrey C. Hazard, Jr. et al., The Law and Ethics of Lawyering 870 (3d ed. 1999).
38. See, e.g., Frances H. Miller, Illuminating Patient Choice: Releasing Physician-Specific Data to the Public, 8 Loy. Consumer L. Rep. 125, 126 (1996); Douglas Sharrott, Note, Provider-Specific Quality-of-Care Data: A Proposal for Limited Mandatory Disclosure, 58 Brook. L. Rev. 85, 92-93 (1992).
39. See, e.g., Frances H. Miller, Illuminating Patient Choice: Releasing Physician- Specific Data to the Public, 8 Loy. Consumer L. Rep. 125, 126 (1996); Douglas Sharrott, Note, Provider-Specific Quality-of-Care Data: A Proposal for Limited Mandatory Disclosure, 58 Brook. L. Rev. 85, 92-93 (1992).
40. See Morton, supra note 23, at 284-85, 284 n.3 (describing reliance on word of mouth to find an attorney as "anachronistic").
41. According to the Martindale-Hubbell survey, 77% of Americans indicated that they had hired a primary care physician. See Lawyers in America, supra note 26, at 16.
42. A simple definition describes managed care as "any system of health coverage in which the entity responsible for paying for covered services exercises control over the manner in which those services are delivered." William M. Sage, Regulating Through Information: Disclosure Laws and American Health Care, 99 Colum. L. Rev. 1701, 1704 n.5 (1999) [hereinafter Sage, Regulating Through Information]. As of early 1998, 165 million Americans received some form of managed medical care. See Timothy S. Hall, Third-Party Payor Conflicts of Interest in Managed Care: A Proposal for Regulation Based on the Model Rules of Professional Conduct, 29 Seton Hall L. Rev. 95, 100 (1998).
43. A simple definition describes managed care as "any system of health coverage in which the entity responsible for paying for covered services exercises control over the manner in which those services are delivered." William M. Sage, Regulating Through Information: Disclosure Laws and American Health Care, 99 Colum. L. Rev. 1701, 1704 n.5 (1999) [hereinafter Sage, Regulating Through Information]. As of early 1998, 165 million Americans received some form of managed medical care. See Timothy S. Hall, Third-Party Payor Conflicts of Interest in Managed Care: A Proposal for Regulation Based on the Model Rules of Professional Conduct, 29 Seton Hall L. Rev. 95, 100 (1998).
44. See Barry R. Furrow, Managed Care Organizations and Patient Injury: Rethinking Liability, 31 Ga. L. Rev. 419, 444, 482-84 (1997); Sage, Regulating Through Information, supra note 37, at 1746 n.154.
45. See Barry R. Furrow, Managed Care Organizations and Patient Injury: Rethinking Liability, 31 Ga. L. Rev. 419, 444, 482-84 (1997); Sage, Regulating Through Information, supra note 37, at 1746 n.154.
46. Of course, this arrangement does not resolve the difficulty a person might have in selecting a primary care physician. But see infra notes 54-55 and accompanying text (discussing the trend of intermediary institutions such as managed care plans to provide information to consumers to help them select a primary care physician). Moreover, as Sage points out, a primary care physician's competence in making referrals may differ from that physician's competence as a practitioner. Sage, Regulating Through Information, supra note 37, at 1746 n.154. Additionally, the primary care physician may have certain financial or other conflicting interests that may cause referrals to be made for reasons other than the merit of the referred-to doctor. Cf. Hall, supra note 37, at 104 (describing "withholds" - accounts set aside by managed care organizations to pay for specialty care, where part or all of any surplus in the account is paid to the primary care physician who provided fewer referrals than the allotted amount was set aside to cover).
47. See supra text accompanying notes 1-3.
48. However, the Martindale Hubbell survey indicated that 68% of those surveyed had hired a lawyer at some point in their lives. See Lawyers in America, supra note 26, at 22. Moreover, of those surveyed who had previously hired a lawyer, 52% claimed to have a "family lawyer" who handled all their affairs. Id. at 41. Nonetheless, this means that only a little more than a third of those surveyed claimed to have such a family lawyer.
49. See, e.g., Gary Bellow & Jean Charn, Paths Not Yet Taken: Some Comments On Feldman's Critique of Legal Services Practice, 83 Geo. L.J. 1633, 1659 app. II (1995) (suggesting "legal check ups" for legal services recipients);
50. Louis M. Brown, The Practice of Preventive Law, 35 Am. Judicature Soc'y 45 (1951) (advocating "preventive law" along the lines of "preventive medicine");
51. Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 Fam. L.Q. 421, 445-46 (1994) (advocating asymptomatic "legal wellness" checkups).
52. Apparently, members of the American Association of Retired Persons ("AARP") Legal Services Network have begun providing "Legal Checkup seminars" at various locations throughout the country. See AARP Legal Services Network, at http://www.aarp.org/lsn/checkup.html (last visited Oct. 15, 2001);
53. see also Wayne Moore & Monica Kolasa, AARP's Legal Services Network: Expanding Legal Services to the Middle Class, 32 Wake Forest L. Rev. 503, 533 (1997). However, such group presentations seem a far cry from the individual examinations one would expect to receive from a physician.
54. According to a survey conducted by the American Bar Association ("ABA"), 61% of the situations faced by moderate income households that could be addressed by the civil justice system are not brought to any part of the justice system. See ABA Consortium on Legal Services and the Public, Legal Needs and Civil Justice: A Survey of Americans - Major Findings from the Comprehensive Legal Needs Study 24 (1994).
55. See Brian Heid & Eitan Misulovin, The Group Legal Plan Revolution: Bright Horizon or Dark Future?, 18 Hofstra Lab. & Emp. L.J. 335 (2000); see also Harland C. Stonecipher & James W. Robinson, The Pre-Paid Legal Story (2000).
56. See Brian Heid & Eitan Misulovin, The Group Legal Plan Revolution: Bright Horizon or Dark Future?, 18 Hofstra Lab. & Emp. L.J. 335 (2000); see also Harland C. Stonecipher & James W. Robinson, The Pre-Paid Legal Story (2000).
57. Heid & Misulovin, supra note 44, at 342.
58. See, e.g., Jim Ellshoff, Pre-Paid Legal Coverage Now Offered in Montana, 25 Mont. Law. 31, 35 (Dec. 1999) (setting forth number of hours of legal services provided by Montana Prepaid Legal Services plan in exchange for monthly $16 premium).
59. Heid & Misulovin, supra note 44, at 342-43 (describing range of legal services covered by various prepaid legal services plans).
60. See Joan H. Krause, Reconceptualizing Informed Consent In an Era of Health Care Cost Containment, 85 Iowa L. Rev. 261, 282 (1999).
61. According to a recent survey, approximately eighteen million Americans are covered by some sort of prepaid legal services plan. See National Resource Center for Consumers of Legal Services, 2000 Legal Services Plan Census 1 (2000), at http://www.nrccls.org/Publications/Legal_Census/legal_census.html (last visited Oct. 15, 2001) (on file with the Fordham Law Review). This is in comparison to a total American population of more than 281 million. See http://factfinder.census.gov/servlet /BasicFactsServlet (last visited Oct. 15, 2001).
62. According to a recent survey, approximately eighteen million Americans are covered by some sort of prepaid legal services plan. See National Resource Center for Consumers of Legal Services, 2000 Legal Services Plan Census 1 (2000), at http://www.nrccls.org/Publications/Legal_Census/legal_census.html (last visited Oct. 15, 2001) (on file with the Fordham Law Review). This is in comparison to a total American population of more than 281 million. See http://factfinder.census.gov/servlet /BasicFactsServlet (last visited Oct. 15, 2001).
63. See Sheldon M. Retchin, Variations in Medicare Health Maintenance Organizations, 281 JAMA 755 (1999) (discussing the numerous forms in which managed health care entities are organized).
64. See Hall, supra note 37, at 101-02, 101 n.22 (citing Jeffrey F. Chase-Lubitz, The Corporate Practice of Medicine Doctrine: An Anachronism in the Modern Health Care Industry, 40 Vand. L. Rev. 445, 446 & n.8 (1987)).
65. See Hall, supra note 37, at 101-02, 101 n.22 (citing Jeffrey F. Chase-Lubitz, The Corporate Practice of Medicine Doctrine: An Anachronism in the Modern Health Care Industry, 40 Vand. L. Rev. 445, 446 & n.8 (1987)).
66. See William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, 60 Law & Contemp. Probs. 159, 191-95 (Spring 1997).
67. As of 1998, 76% of Americans with health insurance received that coverage through their employment. Sage, Regulating Through Information, supra note 37, at 1720 & n.46 (citing Medicare Payment Advisory Commission, Health Care Spending and the Medicare Program: A Data Book 19 (1998)). Another 16% received insurance from government sources (mostly Medicaid), and 8% purchased their own health insurance.
68. Id. at 1720. Virtually all Americans over the age of 65 are eligible for Medicare.
69. Id. at 1720 n.46. Of course, approximately one-sixth of the American population lacks any health insurance coverage.
70. Id. at 1703, 1815 & n.430.
71. See id. at 1737-38.
72. Id. at 1704.
73. See supra notes 44-49 and accompanying text. But see Heid & Misulovin, supra note 44, at 336-40 (pointing to an increasing number of employers providing prepaid legal services plans to employees as a fringe benefit, and predicting further growth in the future). Heid and Misulovin do not discuss what, if any, information is provided by employers to employees regarding the individual lawyers participating in the plans. Heid & Misulovin, supra note 44.
74. See Moore & Kolasa, supra note 42, at 503.
75. See, e.g., http://www.aarp.org/lsn/Florida+-+Ft.+Lauderdale.html (listing participating lawyers in Ft. Lauderdale, Florida) (last visited Oct. 15, 2001).
76. Lawyers in America, supra note 26, at 8, 25 (stating that 50% of those surveyed indicated that they would check the yellow pages as a secondary resource in looking for an attorney).
77. According to the Martindale-Hubbell survey, 33% of those surveyed would refer to television, radio, or print advertisements as a secondary resource to help them to find a lawyer. See id. at 25.
78. 433 U.S. 350 (1977). In Bates, the Court held that truthful advertising by attorneys is a form of constitutionally protected speech, and that blanket bans on such advertising are unconstitutional. Id. at 382-83. In a series of cases subsequent to Bates, the Court has generally upheld particular attorney advertising practices against regulatory efforts by state bar authorities. See generally Morton, supra note 23, at 311-13.
79. Morton, supra note 23, at 295. Some argue that lawyers should be required to disclose certain information regarding discipline and malpractice proceedings in their advertisements.
80. See Sandra L. DeGraw & Bruce W. Burton, Lawyer Discipline and "Disclosure Advertising": Toward a New Ethos, 72 N.C. L. Rev. 351, 396 (1994);
81. Sara Murray, Comment, The Whole Truth or Nothing But the Truth? Should Attorneys Who Advertise Be Required to Disclose Prior Disciplinary Actions Taken Against Them?, 21 St. Mary's L.J. 953, 966 (1990).
82. Morton, supra note 23, at 299. Martindale-Hubbell does offer its own quality rating system based upon oral or written reviews by other attorneys. See, e.g., 1 The Martindale-Hubbell Law Directory xv-xvi (2001). Lawyers receive both a "legal ability rating" and a "general recommendation" rating. Id. In the former category, lawyers can receive a "C" (fair to high); "B" (high to very high) or an "A" (very high to preeminent). Id. In the latter category, lawyers can receive a "V" rating ("very high"). Id. Taken together, the highest rating that an attorney can receive is an "AV" rating. However, Martindale-Hubbell does not make any direct claim that "AV" rated attorneys are superior to other attorneys, and no study to date has supported such a claim. To the contrary, at least one study has suggested that "AV" rated lawyers are no less likely to be sued for malpractice than other lawyers. See Manuel R. Ramos, Legal Malpractice: No Lawyer or Client Is Safe, 47 Fla. L. Rev. 1, 38-39 (1995) [hereinafter Ramos, No Lawyer or Client Is Safe].
83. Morton, supra note 23, at 299. Martindale-Hubbell does offer its own quality rating system based upon oral or written reviews by other attorneys. See, e.g., 1 The Martindale-Hubbell Law Directory xv-xvi (2001). Lawyers receive both a "legal ability rating" and a "general recommendation" rating. Id. In the former category, lawyers can receive a "C" (fair to high); "B" (high to very high) or an "A" (very high to preeminent). Id. In the latter category, lawyers can receive a "V" rating ("very high"). Id. Taken together, the highest rating that an attorney can receive is an "AV" rating. However, Martindale-Hubbell does not make any direct claim that "AV" rated attorneys are superior to other attorneys, and no study to date has supported such a claim. To the contrary, at least one study has suggested that "AV" rated lawyers are no less likely to be sued for malpractice than other lawyers. See Manuel R. Ramos, Legal Malpractice: No Lawyer or Client Is Safe, 47 Fla. L. Rev. 1, 38-39 (1995) [hereinafter Ramos, No Lawyer or Client Is Safe].
84. Morton, supra note 23, at 301.
85. Id.; see also Model Rules of Prof'l Conduct R. 7.2 cmt. 6 (1983) (approving payment of charges to join not-for-profit lawyer referral services).
86. Morton, supra note 23, at 302; see also Rules Regulating Fla. Bar 4-7.11 (providing for for-profit lawyer referral services).
87. This procedure is somewhat troubling, given that prospective clients are often poorly situated to diagnose their own legal problems. See supra notes 30-34 and accompanying text. Moreover, personnel who work for the referral service, even if lawyers themselves, are likely to lump client problems into pre-existing categories of cases, without full consideration of the details of the clients' problem or the appropriateness of such categorizations. See, e.g., Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1 (1990).
88. In this regard, lawyer referral services work similarly to the English "taxi" system as it relates to barristers' services. See Deborah L. Rhode, In the Interests of Justice: Reforming the Legal Profession 60 & n.23 (2000).
89. Morton, supra note 23, at 301.
90. Id. A notable exception is the AARP's Lawyer Referral Network, which, from its inception, required participating lawyers to have a minimum of four years of practice experience, devote at least 20% of their practice to the type of cases for which referrals will be offered, and carry a minimum threshold amount of malpractice insurance. See Moore & Kolasa, supra note 42, at 539.
91. Morton, supra note 23, at 301.
92. Id. at 301-03.
93. See id. Cf. supra notes 4-10 and accompanying text (discussing the relatively extensive requirements of Florida's physician profiles).
94. Thirty-four percent of the persons surveyed on behalf of Martindale-Hubbell indicated that they would use the Internet as a secondary resource in searching for a lawyer. Lawyers in America, supra note 26, at 25. As one would imagine, there are significant age-based differences in persons' willingness to turn to the Internet as a resource. Thus, 52% of those aged twenty-six to twenty-nine were found likely to search the Internet as a secondary resource when looking for a lawyer, whereas, only 15% of those fifty-two years of age or older were likely to turn to the Internet for assistance. Id. at 55.
95. See supra notes 59-73 and accompanying text.
96. See supra note 25.
97. See Richard Zorza, Re-conceptualizing the Relationship Between Legal Ethics and Technological Innovation in Legal Practice: From Threat to Opportunity, 67 Fordham L. Rev. 2659, 2663 & n.16 (1999). In addition to providing some information to help persons to find lawyers, the Internet has also made available a tremendous amount of raw legal information that may make it easier for persons to represent themselves, rather than seeking the services of a lawyer. See id. at 2663-64, 2668-69. Interactive forms, pleadings, and other legal documents may further facilitate self-representation. Id. at 2668-69. For a more detailed discussion of the issues presented by self-representation in family law cases, see Steven Berenson, A Family Law Residency Program?: A Modest Proposal in Response to the Challenge Presented by Self-Represented Litigants In Family Court, 32 Rutgers L.J. (forthcoming December 2001).
98. See Richard Zorza, Re-conceptualizing the Relationship Between Legal Ethics and Technological Innovation in Legal Practice: From Threat to Opportunity, 67 Fordham L. Rev. 2659, 2663 & n.16 (1999). In addition to providing some information to help persons to find lawyers, the Internet has also made available a tremendous amount of raw legal information that may make it easier for persons to represent themselves, rather than seeking the services of a lawyer. See id. at 2663-64, 2668-69. Interactive forms, pleadings, and other legal documents may further facilitate self-representation. Id. at 2668-69. For a more detailed discussion of the issues presented by self-representation in family law cases, see Steven Berenson, A Family Law Residency Program?: A Modest Proposal in Response to the Challenge Presented by Self-Represented Litigants In Family Court, 32 Rutgers L.J. (forthcoming December 2001).
99. See Zorza, supra note 77.
100. Ann Stewart, Comment, Physician Profiles: Consumer Protection or Excessive Exposure?, 25 Fla. St. U. L. Rev. 957, 958 (1998).
101. Id. at 975. For a history of the legislation creating the Massachusetts hotline, see id. at 975-76.
102. Id. at 976.
103. Id. at 977.
104. Stewart, supra note 79, at 977. The statute did not specify the method the Massachusetts Board of Registration in Medicine should use to determine the "average" claims payent. Id. at 978. The Board has apparently chosen to compare malpractice payments made by physicians within a given specialty in order to determine average, above average, and below average claims payments. See http://www.massmedboard.org/malpractice.htm (last visited Oct. 15, 2001).
105. Stewart, supra note 79, at 977.
106. Id. at 981.
107. Id. at 987.
108. Stewart, supra note 79, at 987.
109. Stewart, supra note 79, at 988.
110. David Armstrong, Background Profiles on Mass. Physicians Available on Internet, Boston Globe, May 1, 1997, at B2.
111. Kristen Hallam, Physicians Caught in the Web; Thanks to Internet, Doc Disciplinary Data Now Just a Mouse Click Away, Mod. Healthcare, Sept. 4, 2000, at 30.
112. See The Federation of State Medical Boards of the United States, Inc., Report of the Special Committee on Physician Profiling 5-9 (1999), http://www.fsmb.org/ physicianprofilepd.htm (last visited Oct. 15, 2001) (on file with the Fordham Law Review) [hereinafter FSMB Report].
113. Patricia Simms, It's Still Not Easy to Get Data on Doctors; There's Some Information Online, But It's Pretty Sketchy, Wis. St. J., Mar. 11, 2001, at A1.
114. Linda Boone Hunt, Open the Door; New York Law Part of Movement to Release Disciplinary Data, Modern Physician, Jan. 1, 2001, at 10.
115. See infra Parts II.A.1-II.A.4.
116. See supra notes 30-34 and accompanying text.
117. See, e.g., Robert S. Adler, Stalking the Rogue Physician: An Analysis of the Health Care Quality Improvement Act, 28 Am. Bus. L.J. 683, 741 (1991); Esekiel J. Emanuel & Linda L. Emanuel, Preserving Community in Health Care, 22 J. Health Pol., Pol'y & L. 147, 148 (1997); Stewart, supra note 79, at 957.
118. See, e.g., Robert S. Adler, Stalking the Rogue Physician: An Analysis of the Health Care Quality Improvement Act, 28 Am. Bus. L.J. 683, 741 (1991); Esekiel J. Emanuel & Linda L. Emanuel, Preserving Community in Health Care, 22 J. Health Pol., Pol'y & L. 147, 148 (1997); Stewart, supra note 79, at 957.
119. See, e.g., Robert S. Adler, Stalking the Rogue Physician: An Analysis of the Health Care Quality Improvement Act, 28 Am. Bus. L.J. 683, 741 (1991); Esekiel J. Emanuel & Linda L. Emanuel, Preserving Community in Health Care, 22 J. Health Pol., Pol'y & L. 147, 148 (1997); Stewart, supra note 79, at 957.
120. This view is consistent with Kuhn's broader conclusion that scientific knowledge is in fact no less contingent, and no more immutable, than knowledge in the social sciences, which were traditionally considered to result in a softer form of "truth" than "hard science." See generally Kuhn, supra note 30.
121. See Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. Pa. L. Rev. 41, 44 & n.12 (1979) (citing Schloendorf v. Soc'y of the N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914)).
122. Id. at 48. In practice, doctors have resisted the substantially increased burdens of communication placed upon them by the evolving standard. See generally Jay Katz, The Silent World of Doctor and Patient (2d ed. 1986); Aaron Twerski & Neil Cohen, The Second Revolution in Informed Consent: Comparing Physicians to Each Other, 94 Nw. U. L. Rev. 1, 3 n.4 (1999).
123. Id. at 48. In practice, doctors have resisted the substantially increased burdens of communication placed upon them by the evolving standard. See generally Jay Katz, The Silent World of Doctor and Patient (2d ed. 1986); Aaron Twerski & Neil Cohen, The Second Revolution in Informed Consent: Comparing Physicians to Each Other, 94 Nw. U. L. Rev. 1, 3 n.4 (1999).
124. Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219 (1985).
125. See Twerski & Cohen, supra note 99. But see Sage, Regulating Through Information, supra note 37, at 1750 n.172 (citing cases refusing to hold doctors liable for failure to disclose physician specific information); Kate Sievert Cook, Casenote, Albany Urology Clinic, P.C. v. Cleveland: Why You Should Always Ask Your Urologist if He Is a Cocaine Addict, 52 Mercer L. Rev. 1159 (2001).
126. See Twerski & Cohen, supra note 99. But see Sage, Regulating Through Information, supra note 37, at 1750 n.172 (citing cases refusing to hold doctors liable for failure to disclose physician specific information); Kate Sievert Cook, Casenote, Albany Urology Clinic, P.C. v. Cleveland: Why You Should Always Ask Your Urologist if He Is a Cocaine Addict, 52 Mercer L. Rev. 1159 (2001).
127. See Twerski & Cohen, supra note 99. But see Sage, Regulating Through Information, supra note 37, at 1750 n.172 (citing cases refusing to hold doctors liable for failure to disclose physician specific information); Kate Sievert Cook, Casenote, Albany Urology Clinic, P.C. v. Cleveland: Why You Should Always Ask Your Urologist if He Is a Cocaine Addict, 52 Mercer L. Rev. 1159 (2001).
128. See Health Care Quality Improvement Act of 1986, 42 U.S.C.A. § 11101(1) (1994) ("The increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual State.")
129. J. Douglas Peters et al., An Empirical Analysis of the Medical and Legal Professions' Experiences and Perceptions of Medical and Legal Malpractice, 19 U. Mich. J.L. Reform 601, 602 & n.2 (1986).
130. Elisabeth Ryzen, The National Practitioner Data Bank: Problems and Proposed Reforms, 13 J. Legal Med. 409, 411 (1992)
131. (citing Danzon, Malpractice Liability: Is the Grass on the Other Side Greener?, in Tort Law and the Public Interest 179 (P. Schuck ed., 1991)).
132. Id. (citing P. Huber, The Legal Revolution and its Consequences 9 (1988)).
133. Id. at 412.
134. Id. at 430.
135. To Err is Human: Building a Safer Medical System 1 (Linda T. Kohn et al. eds., 1999). This estimate is based on empirical studies conducted in Colorado, Utah, and New York. Id. at 1 & nn.2-3.
136. See Robert Davis, Hospital Mistakes Must Be Disclosed; Accreditation at Risk if Patients Aren't Told, USA Today, June 28, 2001, at 1A.
137. Adler, supra note 96, at 696.
138. Id. at 697. But see Susan O. Schuetzow, State Medical Peer Review: High Cost But No Benefit - Is it Time for a Change?, 25 Am. J.L. and Med. 7 (1999) (criticizing peer review).
139. Adler, supra note 96, at 697.
140. Id.
141. Id.
142. Id. at 698. Such theories include defamation, denial of due process, and tortious interference with business relations. Id.
143. Id.
144. Id. at 692.
145. See supra note 102; see also 42 U.S.C.A. § 11101 (1994).
146. Ruth E. Flynn, Demand for Public Access to the National Practitioner Data Bank: Consumers Sound Their Own Death Cry, 18 Hamline J. Pub. L. & Pol'y 251, 251-52 (1996) (quoting Austin v. McNamara, 979 F.2d 728, 733 (9th Cir. 1992)).
147. Ryzen, supra note 104, at 416.
148. Id. (citing 45 C.F.R. 60.7 (1991)).
149. Id.
150. Id. at 417 (citing 45 C.F.R. 60.8 (1991)).
151. Id.
152. Id. at 418 (citing 45 C.F.R. 60.9 (1991)).
153. Flynn, supra note 120, at 252.
154. Id. at 253.
155. Julie Barker Pape, Note, Physician Data Banks: The Public's Right to Know Versus the Physician's Right to Privacy, 66 Fordham L. Rev. 975, 982 (1999).
156. Bliley's proposed legislation was designated H.R. 5122 (2000). See, e.g., Public Access to the National Practitioner Data Bank: Hearing Before the House Commerce Comm., 106th Cong. (Sept. 20, 2000) (prepared testimony of Richard F. Corlin, M.D., President-Elect, American Medical Association).
157. Pape, supra note 129, at 982.
158. Id. at 983; see also Ryzen, supra note 104, at 455.
159. Note that subsequent to the development of the data bank, a number of private sources, including both non-profit advocacy groups and for-profit business entities, established a variety of databases that are available to the public, either for free or for a fee, containing information similar to that contained in the data bank. See, e.g., Public Citizen Group, 20,125 Questionable Doctors Disciplined by State and Federal Governments (2000); The American Board of Medical Specialties, http://www.abms.org (last visited Oct. 15, 2001); American Medical Association, AMA Physician Select, http://www.ama-assn.org/aps/amahg.htm (last visited Oct. 15, 2001); HealthGrades, Physician Profiles, http://www.healthgrades.com (last visited Oct. 15, 2001); Search Pointe, http://www.searchpointe.com (last visited Oct. 15, 2001); see also FSMB Report, supra note 91, at 4; Jeff Sturgeon, Here's How to Check Out a Physician, Roanoke Times & World News, Feb. 11, 2001, at 2.
160. Note that subsequent to the development of the data bank, a number of private sources, including both non-profit advocacy groups and for-profit business entities, established a variety of databases that are available to the public, either for free or for a fee, containing information similar to that contained in the data bank. See, e.g., Public Citizen Group, 20,125 Questionable Doctors Disciplined by State and Federal Governments (2000); The American Board of Medical Specialties, http://www.abms.org (last visited Oct. 15, 2001); American Medical Association, AMA Physician Select, http://www.ama-assn.org/aps/amahg.htm (last visited Oct. 15, 2001); HealthGrades, Physician Profiles, http://www.healthgrades.com (last visited Oct. 15, 2001); Search Pointe, http://www.searchpointe.com (last visited Oct. 15, 2001); see also FSMB Report, supra note 91, at 4; Jeff Sturgeon, Here's How to Check Out a Physician, Roanoke Times & World News, Feb. 11, 2001, at 2.
161. Note that subsequent to the development of the data bank, a number of private sources, including both non-profit advocacy groups and for-profit business entities, established a variety of databases that are available to the public, either for free or for a fee, containing information similar to that contained in the data bank. See, e.g., Public Citizen Group, 20,125 Questionable Doctors Disciplined by State and Federal Governments (2000); The American Board of Medical Specialties, http://www.abms.org (last visited Oct. 15, 2001); American Medical Association, AMA Physician Select, http://www.ama-assn.org/aps/amahg.htm (last visited Oct. 15, 2001); HealthGrades, Physician Profiles, http://www.healthgrades.com (last visited Oct. 15, 2001); Search Pointe, http://www.searchpointe.com (last visited Oct. 15, 2001); see also FSMB Report, supra note 91, at 4; Jeff Sturgeon, Here's How to Check Out a Physician, Roanoke Times & World News, Feb. 11, 2001, at 2.
162. Note that subsequent to the development of the data bank, a number of private sources, including both non-profit advocacy groups and for-profit business entities, established a variety of databases that are available to the public, either for free or for a fee, containing information similar to that contained in the data bank. See, e.g., Public Citizen Group, 20,125 Questionable Doctors Disciplined by State and Federal Governments (2000); The American Board of Medical Specialties, http://www.abms.org (last visited Oct. 15, 2001); American Medical Association, AMA Physician Select, http://www.ama-assn.org/aps/amahg.htm (last visited Oct. 15, 2001); HealthGrades, Physician Profiles, http://www.healthgrades.com (last visited Oct. 15, 2001); Search Pointe, http://www.searchpointe.com (last visited Oct. 15, 2001); see also FSMB Report, supra note 91, at 4; Jeff Sturgeon, Here's How to Check Out a Physician, Roanoke Times & World News, Feb. 11, 2001, at 2.
163. Note that subsequent to the development of the data bank, a number of private sources, including both non-profit advocacy groups and for-profit business entities, established a variety of databases that are available to the public, either for free or for a fee, containing information similar to that contained in the data bank. See, e.g., Public Citizen Group, 20,125 Questionable Doctors Disciplined by State and Federal Governments (2000); The American Board of Medical Specialties, http://www.abms.org (last visited Oct. 15, 2001); American Medical Association, AMA Physician Select, http://www.ama-assn.org/aps/amahg.htm (last visited Oct. 15, 2001); HealthGrades, Physician Profiles, http://www.healthgrades.com (last visited Oct. 15, 2001); Search Pointe, http://www.searchpointe.com (last visited Oct. 15, 2001); see also FSMB Report, supra note 91, at 4; Jeff Sturgeon, Here's How to Check Out a Physician, Roanoke Times & World News, Feb. 11, 2001, at 2.
164. Note that subsequent to the development of the data bank, a number of private sources, including both non-profit advocacy groups and for-profit business entities, established a variety of databases that are available to the public, either for free or for a fee, containing information similar to that contained in the data bank. See, e.g., Public Citizen Group, 20,125 Questionable Doctors Disciplined by State and Federal Governments (2000); The American Board of Medical Specialties, http://www.abms.org (last visited Oct. 15, 2001); American Medical Association, AMA Physician Select, http://www.ama-assn.org/aps/amahg.htm (last visited Oct. 15, 2001); HealthGrades, Physician Profiles, http://www.healthgrades.com (last visited Oct. 15, 2001); Search Pointe, http://www.searchpointe.com (last visited Oct. 15, 2001); see also FSMB Report, supra note 91, at 4; Jeff Sturgeon, Here's How to Check Out a Physician, Roanoke Times & World News, Feb. 11, 2001, at 2.
165. Infra Parts II.B.1-II.B.4.
166. See, e.g., Emanuel & Emanuel, supra note 96, at 156.
167. See supra Part II.A.1; see also Lawrence Smarr, A Comparative Assessment of the PIAA Data Sharing Project and the National Practitioner Data Bank: Policy, Purpose and Application, 60 Law & Contemp. Probs. 59, 66-72 (1997).
168. Flynn, supra note 120, at 276.
169. See supra text accompanying notes 91-93.
170. The term "nuisance value" refers to those costs that would have to be incurred to dispose of even the most baseless claim of malpractice. See Ryzen, supra note 104, at 430. Such costs might include attorneys fees, expert witness fees, and the like.
171. Ryzen, supra note 104, at 431; Flynn, supra note 120, at 277. At least one study concluded that the likelihood of malpractice litigation being pursued is more greatly influenced by the doctor's interpersonal skills than by the technical quality of the services provided. Flynn, supra note 120, at 277 (citing 6 Health News Daily, Nov. 23, 1994, at 227 (citing studies by Gerald Hickson, M.D., et al.)); see also Randall R. Bovbjerg & Kenneth R. Petronis, The Relationship Between Physicians' Malpractice Claims History and Later Claims: Does the Past Predict the Future?, 272 JAMA 1421 (1994) (concluding that previous claims, regardless of whether they resulted in payments or not, are indicative of physicians with troubled relationships with their patients). For a description of the Bovbjerg and Petronis study, see Stewart, supra note 79, at 979-81.
172. Ryzen, supra note 104, at 431; Flynn, supra note 120, at 277. At least one study concluded that the likelihood of malpractice litigation being pursued is more greatly influenced by the doctor's interpersonal skills than by the technical quality of the services provided. Flynn, supra note 120, at 277 (citing 6 Health News Daily, Nov. 23, 1994, at 227 (citing studies by Gerald Hickson, M.D., et al.)); see also Randall R. Bovbjerg & Kenneth R. Petronis, The Relationship Between Physicians' Malpractice Claims History and Later Claims: Does the Past Predict the Future?, 272 JAMA 1421 (1994) (concluding that previous claims, regardless of whether they resulted in payments or not, are indicative of physicians with troubled relationships with their patients). For a description of the Bovbjerg and Petronis study, see Stewart, supra note 79, at 979-81.
173. Ryzen, supra note 104, at 431; Flynn, supra note 120, at 277. At least one study concluded that the likelihood of malpractice litigation being pursued is more greatly influenced by the doctor's interpersonal skills than by the technical quality of the services provided. Flynn, supra note 120, at 277 (citing 6 Health News Daily, Nov. 23, 1994, at 227 (citing studies by Gerald Hickson, M.D., et al.)); see also Randall R. Bovbjerg & Kenneth R. Petronis, The Relationship Between Physicians' Malpractice Claims History and Later Claims: Does the Past Predict the Future?, 272 JAMA 1421 (1994) (concluding that previous claims, regardless of whether they resulted in payments or not, are indicative of physicians with troubled relationships with their patients). For a description of the Bovbjerg and Petronis study, see Stewart, supra note 79, at 979-81.
174. Ryzen, supra note 104, at 431; Flynn, supra note 120, at 277. At least one study concluded that the likelihood of malpractice litigation being pursued is more greatly influenced by the doctor's interpersonal skills than by the technical quality of the services provided. Flynn, supra note 120, at 277 (citing 6 Health News Daily, Nov. 23, 1994, at 227 (citing studies by Gerald Hickson, M.D., et al.)); see also Randall R. Bovbjerg & Kenneth R. Petronis, The Relationship Between Physicians' Malpractice Claims History and Later Claims: Does the Past Predict the Future?, 272 JAMA 1421 (1994) (concluding that previous claims, regardless of whether they resulted in payments or not, are indicative of physicians with troubled relationships with their patients). For a description of the Bovbjerg and Petronis study, see Stewart, supra note 79, at 979-81.
175. Ryzen, supra note 104, at 431; Flynn, supra note 120, at 277. At least one study concluded that the likelihood of malpractice litigation being pursued is more greatly influenced by the doctor's interpersonal skills than by the technical quality of the services provided. Flynn, supra note 120, at 277 (citing 6 Health News Daily, Nov. 23, 1994, at 227 (citing studies by Gerald Hickson, M.D., et al.)); see also Randall R. Bovbjerg & Kenneth R. Petronis, The Relationship Between Physicians' Malpractice Claims History and Later Claims: Does the Past Predict the Future?, 272 JAMA 1421 (1994) (concluding that previous claims, regardless of whether they resulted in payments or not, are indicative of physicians with troubled relationships with their patients). For a description of the Bovbjerg and Petronis study, see Stewart, supra note 79, at 979-81.
176. Ryzen, supra note 104, at 431; Flynn, supra note 120, at 277. At least one study concluded that the likelihood of malpractice litigation being pursued is more greatly influenced by the doctor's interpersonal skills than by the technical quality of the services provided. Flynn, supra note 120, at 277 (citing 6 Health News Daily, Nov. 23, 1994, at 227 (citing studies by Gerald Hickson, M.D., et al.)); see also Randall R. Bovbjerg & Kenneth R. Petronis, The Relationship Between Physicians' Malpractice Claims History and Later Claims: Does the Past Predict the Future?, 272 JAMA 1421 (1994) (concluding that previous claims, regardless of whether they resulted in payments or not, are indicative of physicians with troubled relationships with their patients). For a description of the Bovbjerg and Petronis study, see Stewart, supra note 79, at 979-81.
177. Ryzen, supra note 104, at 432 (citing Rolph, et al., Malpractice Claims Data as a Quality Improvement Tool II: Is Targeting Effective?, 266 JAMA 2093 (1991)).
178. Ryzen, supra note 104, at 432 (citing Rolph, et al., Malpractice Claims Data as a Quality Improvement Tool II: Is Targeting Effective?, 266 JAMA 2093 (1991)).
179. But see Bovbjerg & Petronis, supra note 140, at 1425 (concluding that a history of prior malpractice claims is strongly predictive of a likelihood of future claims against a practitioner).
180. Ryzen, supra note 104, at 430 (citing Medical Malpractice: Hearings on H.R. 5110: Before the Subcomm. on Health and the Environment of the House Comm. on Energy and Commerce, 99th Cong., 2d Sess. (Mar. 18 and July 15,1986)).
181. Ryzen, supra note 104, at 430 (citing Gastel, Medical Malpractice Insurance Information Institute, New York, Nov. 1991).
182. Stewart, supra note 79, at 985. The Hickson study, supra note 140, was unable to document a correlation between prior disciplinary action and quality of subsequent care.
183. This figure represents the FSMB's Composite Action Index ("CAI") for 2000. See Federation of State Medical Boards, Summary of 2000 Board Actions (Apr. 6, 2001), http://www.fsmb.org/PDFFiles/2001SBA.pdf (on file with the Fordham Law Review). The CAI, in turn, represents the arithmetic mean of four other state activity ratios: 1) total actions divided by total licensed physicians; 2) total actions divided by practicing in-state physicians; 3) total prejudicial actions divided by total licensed physicians; and 4) total prejudicial actions divided by practicing in-state physicians. Id. A prejudicial action includes any loss or restriction of a license or license privilege or any penalty or reprimand to an individual physician. Id. The CAI is purported to be a useful way to measure a state board's disciplinary activity over time. However, since the CAI is not claimed to be reliable in jurisdictions with less than 2000 practicing physicians, id., those figures are not referred to in the above discussion.
184. Id.
185. Stewart, supra note 79, at 985-86.
186. See supra note 9.
187. See Stewart, supra note 79, at 983 n.170, for the text of the Massachusetts disclaimer.
188. See, e.g., Miller, supra note 34, at 130; Pape, supra note 129, at 1027.
189. See, e.g., Miller, supra note 34, at 130; Pape, supra note 129, at 1027.
190. See FSMB Report, supra note 91, at 7-8; Miller, supra note 34, at 129-30; Ryzen, supra note 104, at 457.
191. See FSMB Report, supra note 91, at 7-8; Miller, supra note 34, at 129-30; Ryzen, supra note 104, at 457.
192. See FSMB Report, supra note 91, at 7-8; Miller, supra note 34, at 129-30; Ryzen, supra note 104, at 457.
193. See Adler, supra note 96, at 740;
194. Stewart, supra note 79, at 973.
195. Ryzen, supra note 104, at 447-48.
196. Pape, supra note 129, at 989-90; Ryzen, supra note 104, at 434; Flynn, supra note 120, at 275-76.
197. Pape, supra note 129, at 989-90; Ryzen, supra note 104, at 434; Flynn, supra note 120, at 275-76.
198. Pape, supra note 129, at 989-90; Ryzen, supra note 104, at 434; Flynn, supra note 120, at 275-76.
199. See Ryzen, supra note 104, at 456 & n.238.
200. See supra text accompanying note 112; see also Pape, supra note 129, at 990.
201. Pape, supra note 129, at 990-91.
202. Id. at 990.
203. Sage, Regulating Through Information, supra note 37, at 1795 n.353 (citing Laura-Mae Baldwin, Hospital Peer Review and the National Practitioner Data Bank: Clinical Privileges Action Reports, 282 JAMA 349 (1999)). Additionally, Sage contends that some managed care physicians insisted on having "no cause" termination provisions inserted in their employment contracts in order to prevent incurring reportable terminations from managed care panels. Id. (citing Alice G. Gosfield, Presentation to the American Medical Association (Feb. 1993)). Apparently, deals are also worked out with HMOs on a case-by-case basis to allow doctors to resign from a health plan rather than incur reportable discipline. See Robert Pear, Inept Physicians Are Rarely Listed as Law Requires, N.Y. Times, May 29, 2001, at A1. Even more troubling is a recent report by the Inspector General of the Department of Health and Human Services demonstrating extremely low levels of compliance with the HCQIA's reporting requirements by both HMOs and hospitals, even where discipline is imposed. See Department of Health and Human Services, Office of Inspector General, Managed Care Organization Nonreporting to the National Practitioner Data Bank: A Signal for Broader Concern (May 2001). According to the report, from 1990-99, HMOs reported a total of only 715 adverse actions to the NPDB, and 84% of HMOs reported no adverse actions at all. Id. at i. Hospital reporting is not much better - as of the year 2000, 60% of hospitals had never reported an adverse action to the NPDB. Id. at 2.
204. Sage, Regulating Through Information, supra note 37, at 1795 n.353 (citing Laura-Mae Baldwin, Hospital Peer Review and the National Practitioner Data Bank: Clinical Privileges Action Reports, 282 JAMA 349 (1999)). Additionally, Sage contends that some managed care physicians insisted on having "no cause" termination provisions inserted in their employment contracts in order to prevent incurring reportable terminations from managed care panels. Id. (citing Alice G. Gosfield, Presentation to the American Medical Association (Feb. 1993)). Apparently, deals are also worked out with HMOs on a case-by-case basis to allow doctors to resign from a health plan rather than incur reportable discipline. See Robert Pear, Inept Physicians Are Rarely Listed as Law Requires, N.Y. Times, May 29, 2001, at A1. Even more troubling is a recent report by the Inspector General of the Department of Health and Human Services demonstrating extremely low levels of compliance with the HCQIA's reporting requirements by both HMOs and hospitals, even where discipline is imposed. See Department of Health and Human Services, Office of Inspector General, Managed Care Organization Nonreporting to the National Practitioner Data Bank: A Signal for Broader Concern (May 2001). According to the report, from 1990-99, HMOs reported a total of only 715 adverse actions to the NPDB, and 84% of HMOs reported no adverse actions at all. Id. at i. Hospital reporting is not much better - as of the year 2000, 60% of hospitals had never reported an adverse action to the NPDB. Id. at 2.
205. Sage, Regulating Through Information, supra note 37, at 1795 n.353 (citing Laura-Mae Baldwin, Hospital Peer Review and the National Practitioner Data Bank: Clinical Privileges Action Reports, 282 JAMA 349 (1999)). Additionally, Sage contends that some managed care physicians insisted on having "no cause" termination provisions inserted in their employment contracts in order to prevent incurring reportable terminations from managed care panels. Id. (citing Alice G. Gosfield, Presentation to the American Medical Association (Feb. 1993)). Apparently, deals are also worked out with HMOs on a case-by-case basis to allow doctors to resign from a health plan rather than incur reportable discipline. See Robert Pear, Inept Physicians Are Rarely Listed as Law Requires, N.Y. Times, May 29, 2001, at A1. Even more troubling is a recent report by the Inspector General of the Department of Health and Human Services demonstrating extremely low levels of compliance with the HCQIA's reporting requirements by both HMOs and hospitals, even where discipline is imposed. See Department of Health and Human Services, Office of Inspector General, Managed Care Organization Nonreporting to the National Practitioner Data Bank: A Signal for Broader Concern (May 2001). According to the report, from 1990-99, HMOs reported a total of only 715 adverse actions to the NPDB, and 84% of HMOs reported no adverse actions at all. Id. at i. Hospital reporting is not much better - as of the year 2000, 60% of hospitals had never reported an adverse action to the NPDB. Id. at 2.
206. Sage, Regulating Through Information, supra note 37, at 1795 n.353 (citing Laura-Mae Baldwin, Hospital Peer Review and the National Practitioner Data Bank: Clinical Privileges Action Reports, 282 JAMA 349 (1999)). Additionally, Sage contends that some managed care physicians insisted on having "no cause" termination provisions inserted in their employment contracts in order to prevent incurring reportable terminations from managed care panels. Id. (citing Alice G. Gosfield, Presentation to the American Medical Association (Feb. 1993)). Apparently, deals are also worked out with HMOs on a case-by-case basis to allow doctors to resign from a health plan rather than incur reportable discipline. See Robert Pear, Inept Physicians Are Rarely Listed as Law Requires, N.Y. Times, May 29, 2001, at A1. Even more troubling is a recent report by the Inspector General of the Department of Health and Human Services demonstrating extremely low levels of compliance with the HCQIA's reporting requirements by both HMOs and hospitals, even where discipline is imposed. See Department of Health and Human Services, Office of Inspector General, Managed Care Organization Nonreporting to the National Practitioner Data Bank: A Signal for Broader Concern (May 2001). According to the report, from 1990-99, HMOs reported a total of only 715 adverse actions to the NPDB, and 84% of HMOs reported no adverse actions at all. Id. at i. Hospital reporting is not much better - as of the year 2000, 60% of hospitals had never reported an adverse action to the NPDB. Id. at 2.
207. Sage, Regulating Through Information, supra note 37, at 1795 n.353 (citing Laura-Mae Baldwin, Hospital Peer Review and the National Practitioner Data Bank: Clinical Privileges Action Reports, 282 JAMA 349 (1999)). Additionally, Sage contends that some managed care physicians insisted on having "no cause" termination provisions inserted in their employment contracts in order to prevent incurring reportable terminations from managed care panels. Id. (citing Alice G. Gosfield, Presentation to the American Medical Association (Feb. 1993)). Apparently, deals are also worked out with HMOs on a case-by-case basis to allow doctors to resign from a health plan rather than incur reportable discipline. See Robert Pear, Inept Physicians Are Rarely Listed as Law Requires, N.Y. Times, May 29, 2001, at A1. Even more troubling is a recent report by the Inspector General of the Department of Health and Human Services demonstrating extremely low levels of compliance with the HCQIA's reporting requirements by both HMOs and hospitals, even where discipline is imposed. See Department of Health and Human Services, Office of Inspector General, Managed Care Organization Nonreporting to the National Practitioner Data Bank: A Signal for Broader Concern (May 2001). According to the report, from 1990-99, HMOs reported a total of only 715 adverse actions to the NPDB, and 84% of HMOs reported no adverse actions at all. Id. at i. Hospital reporting is not much better - as of the year 2000, 60% of hospitals had never reported an adverse action to the NPDB. Id. at 2.
208. See Flynn, supra note 120, at 275.
209. Supra Part II.A.2.
210. Public Access to the National Practitioner Data Bank: Hearings Before the House Commerce Comm., 106th Cong. (Mar. 1, 2000) (prepared testimony of Nancy Achin Sullivan, Executive Director, Massachusetts Board of Registration in Medicine).
211. Public Access to the National Practitioner Data Bank: Hearings Before the House Commerce Comm., 106th Cong. (Sept. 20, 2000) (prepared testimony of Travis B. Plunkett, Legislative Director, Consumer Federation of America).
212. Id. (prepared testimony of Gloria Crawford Henderson, Director, Division of Medical Quality Assurance, Florida Department of Health).
213. See Pape, supra note 129, at 992; Stewart, supra note 79, at 963.
214. See Pape, supra note 129, at 992; Stewart, supra note 79, at 963.
215. See In re Ruffalo, 390 U.S. 544, 551 (1968).
216. See Stewart, supra note 79, at 963-64.
217. Flynn, supra note 120, at 270.
218. Id. at 271.
219. Id. at 270-71.
220. See supra text accompanying notes 168-170; see also Stewart, supra note 79, at 964.
221. See Stewart, supra note 79, at 989.
222. See supra text accompanying notes 168-170.
223. See Stewart, supra note 79, at 989.
224. See Public Access to the National Practitioner Data Bank: Hearings Before the House Commerce Comm., 106th Cong. (Sept. 20, 2000) (prepared testimony of Gloria Crawford Henderson, Director, Division of Medical Quality Assurance, Florida Department of Health).
225. Public Access to the National Practitioner Data Bank: Hearings Before the House Commerce Comm., 106th Cong. (Mar. 1, 2000) (prepared testimony of Nancy Achin Sullivan, Executive Director, Massachusetts Board of Registration in Medicine).
226. See, e.g., Department of Health and Human Services, Office of the Inspector General, Managed Care Organization Nonreporting to the National Practitioner Data Bank: A Signal for Broader Concern (2001); General Accounting Office, National Practitioner Data Bank: Major Improvements Are Needed to Enhance Data Bank's Reliability (2000); Pape, supra note 129, at 1018.
227. See, e.g., Department of Health and Human Services, Office of the Inspector General, Managed Care Organization Nonreporting to the National Practitioner Data Bank: A Signal for Broader Concern (2001); General Accounting Office, National Practitioner Data Bank: Major Improvements Are Needed to Enhance Data Bank's Reliability (2000); Pape, supra note 129, at 1018.
228. See, e.g., Department of Health and Human Services, Office of the Inspector General, Managed Care Organization Nonreporting to the National Practitioner Data Bank: A Signal for Broader Concern (2001); General Accounting Office, National Practitioner Data Bank: Major Improvements Are Needed to Enhance Data Bank's Reliability (2000); Pape, supra note 129, at 1018.
229. See Pape, supra note 129, at 1018.
230. Id. at 1013-14, 1018.
231. See supra text accompanying note 177.
232. See Pape, supra note 129, at 1004-08 (discussing "fair information practices" for physician data banks).
233. Fla. Stat. ch. 456.039 (2001).
234. A fingerprint check run of all new applicants for medical licenses since 1997 and all applicants for renewals since 2000 revealed sixteen doctors who failed to report criminal convictions as required by Florida's profile legislation. Check Reveals Criminal Past of 2000 M.D.s, Miami Herald, June 12, 2001, at 7B.
235. See Fla. Stat. ch. 456.041(7). A copy of the profile must be provided to the doctor at least thirty days before publication. The doctor then has thirty days to correct any errors. Id
236. See Pape, supra note 129, at 1020 & nn. 294-96 (citing 45 C.F.R. 60.11(a)(2), 60.14 (1996)).
237. See supra text accompanying note 90.
238. Supra Part II.B.
239. See supra text accompanying notes 175-176.
240. See supra text accompanying notes 162-163.
241. See, e.g., Susan R. Martyn, Informed Consent in the Practice of Law, 48 Geo. Wash. L. Rev. 307 (1980); Spiegel, supra note 98.
242. See, e.g., Susan R. Martyn, Informed Consent in the Practice of Law, 48 Geo. Wash. L. Rev. 307 (1980); Spiegel, supra note 98.
243. See, e.g., Model Rules of Prof'l Conduct R. 1.2(a) (1998) ("A lawyer shall abide by a client's decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued."); R. 1.4(b) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.") Ethical Consideration 7-8 of the predecessor Model Code of Professional Responsibility stated that a lawyer "should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations." Model Code of Prof'l Responsibility EC 7-8 (1969).
244. See supra Part II.A.1.
245. See Cramton, supra note 23, at 607.
246. Id. at 607-08. The Legal Realist movement, beginning in the 1920s, challenged the existing notion that immutable legal rules could be deduced from prior case decisions, and then applied in future cases to yield determinate results. See Joseph William Singer, Legal Realism Now, 76 Cal. L. Rev. 467, 469 (1988)
247. (reviewing Laura Kalman, Legal Realism at Yale, 1927-1960 (1986)). Rather, the Legal Realists contended that decisions in cases are both fact specific, and functions of existing social conditions, and therefore, are much less determinate than previously assumed. Id.
248. More formally known as the ABA's Commission on Evaluation of the Rules of Professional Conduct, the project was undertaken in 1997 to conduct the first review of the ABA's Model Rules of Professional Conduct, since their promulgation in 1983. See Margaret Colgate Love, Update on Ethics 2000 Project and Summary of Recommendations to Date, 31 Syllabus 19 (Winter 2000)
249. . The ABA's legislative authority, the House of Delegates, began consideration of the recommended changes in August 2001. See James Podgers, Ethics Code Rework: New ABA Model Rules May Be Under Construction in Next Few Months, 87 A.B.A. J. 58 (May 2001).
250. The Commission proposed adding the following definition of "informed consent" to the Rules: "the agreement . . . to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." Model Rules of Prof'l Conduct R. 1.0 (Proposed Rule 2001), http://abanet.org/cpr/e2k-rule10.html (on file with the Fordham Law Review).
251. See Chair's Introduction and Executive Summary at 3 (Aug. 2001), http://www.abanet.org/cpr/e2k-intro_summary.html (on file with the Fordham Law Review).
252. Specific instances where the proposed rules would require informed consent of the client include: agreements between attorney and client to limit the scope or objectives of representation, see R. 1.2(c) (Proposed Rule 2001), http://www. abanet.org/cpr/e2k-rule12.html (on file with the Fordham Law Review); waivers of confidentiality by the client, see R. 1.6(a) (Proposed Rule 2001), http://www.abanet. org/cpr/e2k-rule16.html (on file with the Fordham Law Review); and waivers of concurrent conflicts of interest, see R. 1.7(b) (Proposed Rule 2001), http://www. abanet.org/cpr/e2k-rule17.html (on file with the Fordham Law Review).
253. Specific instances where the proposed rules would require informed consent of the client include: agreements between attorney and client to limit the scope or objectives of representation, see R. 1.2(c) (Proposed Rule 2001), http://www. abanet.org/cpr/e2k-rule12.html (on file with the Fordham Law Review); waivers of confidentiality by the client, see R. 1.6(a) (Proposed Rule 2001), http://www.abanet. org/cpr/e2k-rule16.html (on file with the Fordham Law Review); and waivers of concurrent conflicts of interest, see R. 1.7(b) (Proposed Rule 2001), http://www. abanet.org/cpr/e2k-rule17.html (on file with the Fordham Law Review).
254. Specific instances where the proposed rules would require informed consent of the client include: agreements between attorney and client to limit the scope or objectives of representation, see R. 1.2(c) (Proposed Rule 2001), http://www. abanet.org/cpr/e2k-rule12.html (on file with the Fordham Law Review); waivers of confidentiality by the client, see R. 1.6(a) (Proposed Rule 2001), http://www.abanet. org/cpr/e2k-rule16.html (on file with the Fordham Law Review); and waivers of concurrent conflicts of interest, see R. 1.7(b) (Proposed Rule 2001), http://www. abanet.org/cpr/e2k-rule17.html (on file with the Fordham Law Review).
255. The Commission recommended no change to Model Rule 1.1, which merely requires that a lawyer be "competent" to undertake representation on a particular legal matter. The Rule, in turn, defines competent representation as requiring "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Model Rules of Prof'l Conduct R. 1.1 (2001). Moreover, the Comment to the Rule indicates that even if a lawyer is not competent to undertake the representation at the outset, the lawyer can nonetheless undertake the matter if the lawyer can become competent through "necessary study" or "reasonable preparation." R. 1.1 cmts. 2, 4. It is hard to see how this Rule could be interpreted properly to require attorneys to disclose facts about their background, experience, or disciplinary or malpractice record prior to taking on a particular case. While an attorney's fiduciary duties to a client might require more in the way of disclosure, such duties are not likely to arise until after the formation of an attorney-client relationship. See, e.g., Tante v. Herring, 453 S.E.2d 686 (Ga. 1994). However, it is prior to the decision whether to engage a particular attorney that the prospective client stands to benefit most from the disclosure of such information.
256. See Gary N. Schumann & Scott B. Herlihy, The Impending Wave of Legal Malpractice Litigation - Predictions, Analysis, and Proposals for Change, 30 St. Mary's L.J. 143 (1998) (predicting tremendous future growth in number of malpractice actions brought against attorneys).
257. But see Manual R. Ramos, Legal Malpractice: The Profession's Dirty Little Secret, 47 Vand. L. Rev. 1657 (1994) (arguing that the frequency of legal malpractice is much greater than acknowledged by the profession and legal scholars);
258. Ramos, No Lawyer or Client is Safe, supra note 63, at 1 (same);
259. Manual R. Ramos, Legal and Law School Malpractice: Confessions of a Lawyer's Lawyer and Law Professor, 57 Ohio St. L. J. 863 (1996) (same);
260. Manual R. Ramos, Legal Malpractice: Reforming Lawyers and Law Professors, 70 Tul. L. Rev. 2583 (1996) (same).
261. See Peters, et al., supra note 103, at 608.
262. Rhode, supra note 68, at 165. Rhode attributes this growth to failure of disciplinary processes to provide effective consumer remedies, consumer activism, a search for "deep pockets" following financial scandals, and an increase in the number of lawyers specializing in malpractice work. Id. 205. Schumann & Herlihy, supra note 202. More particularly, Schumann and Herlihy predict a tremendous growth in legal malpractice litigation in Texas due to 1) a decline in the professional collegiality that made lawyers reluctant to sue other lawyers; 2) increased difficulty in recovering from traditional defendant groups due to changes in Texas law; 3) rising numbers of inexperienced and unmentored lawyers; 4) a likely decline in the Texas business cycle; and 5) acceptance of novel theories of liability including breach of fiduciary duty and liability without privity. Id. at 148-50.
263. ABA Standing Committee on Lawyer's Professional Liability, Profile of Legal Malpractice Claims 1996-1999 (2001) [hereinafter Legal Malpractice Claims 1996-1999]. Note that the methodology used in the ABA study involved questioning malpractice insurers. Id. at 1. Therefore, the study does not address malpractice by lawyers who do not carry malpractice insurance. In a similar earlier study, the ABA estimated that between 30% and 50% of lawyers carry no malpractice insurance. ABA Standing Committee on Lawyers' Professional Liability, Legal Malpractice Claims in the 1990s, at 5 (1996) [hereinafter Legal Malpractice Claims in the 1990s].
264. More specifically, 53.73% of the claims were abandoned without payment and 14.03% resulted in judgments for the defendant. Legal Malpractice Claims, 1996-1999, supra note 206, at 10.
265. Id. 209. The ABA's study for the years 1990-95 found that more than 56% of the malpractice claims filed resulted in no payment at all to the claimant, and only 0.25% resulted in plaintiff's judgments. Legal Malpractice Claims in the 1990s, supra note 206, at 12. In its study of the years 1983-85, the ABA found that 68.36% of the claims resulted in no payment to the claimant, and only 1.14% of the claims resulted in plaintiff's judgments. Legal Malpractice Claims, 1996-1999, supra note 206, at 10.
266. Legal Malpractice Claims, 1996-1999, supra note 206, at 19.
267. See Susan R. Martyn, Peer Review and Quality Assurance for Lawyers, 20 U. Tol. L. Rev. 295, 295 (1989) [hereinafter Martyn, Peer Review].
268. See, e.g., Avedis Donabedian, A Primer of Quality Assurance and Monitoring in Medical Care, 20 U. Tol. L. Rev. 401 (1989).
269. See, e.g., A.A. Sommer, The Accounting Profession's Peer Review Program, 20 U. Tol. L. Rev. 375 (1989).
270. Donabedian, supra note 213.
271. Martyn, Peer Review, supra note 212, at 297 (citing Donabedian, supra note 213, at 411).
272. Id.
273. Id.
274. Id.
275. Id.
276. Id. at 298.
277. Id. at 298-99.
278. Id. at 299.
279. Id. at 300.
280. Id. at 301.
281. Id. at 300.
282. Id. at 301-02.
283. Id.; see also Robert E. O'Malley, Preventing Legal Malpractice in Large Law Firms, 20 U. Tol. L. Rev. 325 (1989). Robert E. O'Malley served as Loss Prevention Counsel to the Attorneys' Liability Assurance Society, Inc. Id.
284. Martyn, Peer Review, supra note 212, at 302 & n.32; see also Donald M. Crawford, Comment, Professional Peer Review: Can the Legal Profession Learn from the Medical Profession's Experience?, 20 U. Tol. L. Rev. 473 (1989).
285. Martyn, Peer Review, supra note 212, at 302 & n.32; see also Donald M. Crawford, Comment, Professional Peer Review: Can the Legal Profession Learn from the Medical Profession's Experience?, 20 U. Tol. L. Rev. 473 (1989).
286. See Martyn, Peer Review, supra note 212, at 302.
287. But see supra note 201.
288. See American Bar Association Section of Legal Education and Admissions to the Bar, Legal Education and Professional Development - An Educational Continuum (Report of the Task Force on Law Schools and the Profession: Narrowing the Gap) 121-221 (1992).
289. See Burnele V. Powell, Open Doors, Open Arms, and Substantially Open Records: Consumerism Takes Hold in the Legal Profession, 28 Val. U. L. Rev. 709, 722 (1994).
290. Id. at 722 (quoting American Bar Association Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement (1970)).
291. Id.
292. See supra Part II.A.3.
293. Powell, supra note 233, at 709 & n.2.
294. American Bar Association, Commission on Evaluation of Disciplinary Enforcement, Lawyer Regulation for a New Century xiv (1992) [hereinafter McKay Commission Report].
295. Id. at 113-14 (citing ABA Model Rules for Lawyer Disciplinary Enforcement, Rule 22 (1979)).
296. Id. at 1-86.
297. Id. at 33-34; see also DeGraw & Burton, supra note 62, at 393.
298. McKay Commission Report, supra note 238, at xiv-xv; see also Leslie C. Levin, The Emperor's New Clothes and Other Tales About the Standards for Imposing Lawyer Discipline Sanctions, 48 Am. U. L. Rev. 1, 3 (1998).
299. McKay Commission Report, supra note 238, at xiv-xv; see also Leslie C. Levin, The Emperor's New Clothes and Other Tales About the Standards for Imposing Lawyer Discipline Sanctions, 48 Am. U. L. Rev. 1, 3 (1998).
300. See Rhode, supra note 68, at 158-65.
301. Morton, supra note 23, at 304-05. This is the procedure that is recommended in the ABA's Model Rules for Lawyer Disciplinary Enforcement. Id. at 305 & n.110 (citing Model Rule 16(B)).
302. Id. at 305.
303. Rhode, supra note 68, at 161.
304. Kristina Serafini Pennex, Note, Lifting the Veil of Secrecy by Opening Michigan's Disciplinary System, 73 U. Det. Mercy L. Rev. 569, 579 (1996).
305. Id. at 578-79.
306. See Powell, supra note 233, at 730.
307. See DeGraw & Burton, supra note 62, at 358.
308. Id. at 355 & nn.9-10; see also Morton, supra note 23, at 307.
309. Levin, supra note 242, at 6.
310. Morton, supra note 23, at 306.
311. See id.; see also supra Part II.A.4 (discussing the NPDB).
312. See Morton, supra note 23, at 306-07.
313. Id.
314. Id. at 287 (citing Robert E. Smith & Tiffany S. Meyer, Attorney Advertising: A Consumer Perspective, J. Marketing 56, 60 (Spring 1980)).
315. Id. at 288.
316. Lawyers in America, supra note 26, at 29.
317. Id. at 30.
318. Morton, supra note 23, at 290-91.
319. Id. at 291 (citing Douglas Rosenthal, Lawyer and Client: Who's In Charge? (1974)).
320. See, e.g., Pennex, supra note 247, at 577.
321. See supra text accompanying note 153.
322. See John Leubsdorf, Legal Malpractice and Professional Responsibility, 48 Rutgers L. Rev. 101, 139-40 (1995).
323. Id. at 140. The recent ABA report regarding legal malpractice claims shows that claims based on administrative errors, such as missing a court date, decreased by 5% since 1995. Legal Malpractice Claims 1996-1999, supra note 206, at 11. Such claims are presently at their lowest recorded level. Id.
324. See Pennex, supra note 247, at 576.
325. Rhode, supra note 68, at 163; McKay Commission Report, supra note 238, at 34-39; Pennex, supra note 247, at 580-81; John P. Sahl, The Public Hazard of Lawyer Self-Regulation: Learning from Ohio's Struggle to Reform Its Disciplinary System, 68 U. Cin. L. Rev. 65, 112-13 (1999).
326. Rhode, supra note 68, at 163; McKay Commission Report, supra note 238, at 34-39; Pennex, supra note 247, at 580-81; John P. Sahl, The Public Hazard of Lawyer Self-Regulation: Learning from Ohio's Struggle to Reform Its Disciplinary System, 68 U. Cin. L. Rev. 65, 112-13 (1999).
327. Rhode, supra note 68, at 163; McKay Commission Report, supra note 238, at 34-39; Pennex, supra note 247, at 580-81; John P. Sahl, The Public Hazard of Lawyer Self-Regulation: Learning from Ohio's Struggle to Reform Its Disciplinary System, 68 U. Cin. L. Rev. 65, 112-13 (1999).
328. Rhode, supra note 68, at 163; McKay Commission Report, supra note 238, at 34-39; Pennex, supra note 247, at 580-81; John P. Sahl, The Public Hazard of Lawyer Self-Regulation: Learning from Ohio's Struggle to Reform Its Disciplinary System, 68 U. Cin. L. Rev. 65, 112-13 (1999).
329. See Sahl, supra note 268, at 112-13.
330. Morton, supra note 23, at 292.
331. Id. at 292-93.
332. Id. at 292.
333. See, e.g., Morton, supra note 23, at 307-08 (discussing California Bar's disciplinary information "hotline"); Pennex, supra note 247, at 572-73 (stating that Michigan disciplinary proceedings are available to public after formal process has issued).
334. See, e.g., Morton, supra note 23, at 307-08 (discussing California Bar's disciplinary information "hotline"); Pennex, supra note 247, at 572-73 (stating that Michigan disciplinary proceedings are available to public after formal process has issued).
335. See supra Part III.B.3.
336. See supra Part III.A.4.
337. See Morton, supra note 23, at 306.
338. See supra Part III.A.
339. See supra Part III.B.
340. See, e.g., FSMB Report, supra note 91, at 5; Miller, supra note 34, at 128-29; Pape, supra note 129, at 1022; Stewart, supra note 79, at 976-77.
341. See, e.g., FSMB Report, supra note 91, at 5; Miller, supra note 34, at 128-29; Pape, supra note 129, at 1022; Stewart, supra note 79, at 976-77.
342. See, e.g., FSMB Report, supra note 91, at 5; Miller, supra note 34, at 128-29; Pape, supra note 129, at 1022; Stewart, supra note 79, at 976-77.
343. See, e.g., FSMB Report, supra note 91, at 5; Miller, supra note 34, at 128-29; Pape, supra note 129, at 1022; Stewart, supra note 79, at 976-77.
344. See, e.g., FSMB Report, supra note 91, at 5-6.
345. See, e.g., Model Rules of Prof'l Conduct R. 7.4 (1998).
346. See supra note 139.
347. In fact, according to the ABA's recent study, Legal Malpractice Claims 1996-1999, supra note 206, at 13, more than 80% of the malpractice claims reported were resolved for defense costs of $5000 or less. Additionally, the amount of indemnity payment was $10,000 or less in 83.43% of the cases. Id. at 15.
348. See supra text accompanying note 9.
349. See supra note 83 and accompanying text.
350. FSMB Report, supra note 91, at 7-8.
351. Rhode, supra note 68, at 167.
352. Id. at 168; see also Leubsdorf, supra note 265, at 155-56; Sahl, supra note 268, at 103.
353. Id. at 168; see also Leubsdorf, supra note 265, at 155-56; Sahl, supra note 268, at 103.
354. Id. at 168; see also Leubsdorf, supra note 265, at 155-56; Sahl, supra note 268, at 103.
355. See Pennex, supra note 247, at 576; Sahl, supra note 268, at 111.
356. See Pennex, supra note 247, at 576; Sahl, supra note 268, at 111.
357. Stewart, supra note 79, at 977.
358. See Rhode, supra note 68, at 159-60.
359. Supra text accompanying notes 268-69.
360. See Model Rules of Prof'l Conduct R. 8.3(a) (2001).
361. See supra notes 233-52 and accompanying text.
362. See supra text accompanying note 241.
363. Id.
364. See McKay Commission Report, supra note 238, at 34.
365. See supra Parts II.B.3., III.B.3.
366. See, e.g., FSMB Report, supra note 91, at 6-7.
367. See, e.g., Miller, supra note 34, at 132.
368. Model Rules of Prof'l Conduct R. 8.4(b) (1998).
369. See, e.g., Stephen Gillers & Roy D. Simon, Jr., Regulation of Lawyers 642-43 (5th ed. 1998).
370. See, e.g., Miller, supra note 34, at 133.
371. FSMB Report, supra note 91, at 7.
372. Id.
373. See, e.g., R. 7.4 (1998).
374. See FSMB Report, supra note 91, at 10.
375. See, e.g., Miller, supra note 34, at 134 (discussing issue in medical context); Stewart, supra note 79, at 988 (same).
376. See, e.g., Miller, supra note 34, at 134 (discussing issue in medical context); Stewart, supra note 79, at 988 (same).
377. Miller, supra note 34, at 134.
378. Id.
379. Accord Rules Regulating the Fla. Bar 3-7.1(o) (stating that the reason for the inadmissibility in disciplinary proceedings of evidence that the attorney has sought drug or alcohol treatment is to encourage attorneys to seek such treatment without fear of negative consequences).
380. See supra Introduction.