2022 Dispute Resolution Advancement Award Goes to Settlement Malpractice Scholar

Professor Michael Moffitt, the Philip H. Knight Chair at the University of Oregon School of Law, will receive the Hugh L. Carey Center’s 2022 Dispute Resolution Advancement Award for the research reported in his Chicago Law Review article, “Settlement Malpractice.”

The $5000 annual award recognizes scholars whose published empirical research furthers the advancement and understanding of the values and skills of dispute resolution. Research considered for the award has broad applicability to the alternate dispute resolution field, or focuses on the values and application of dispute resolution in a specific area. Interdisciplinary research is encouraged, and the findings should be published in a nationally respected journal within a specified period. In assessing a candidate, the selection committee also considers:

• The significance and quality of the research
• The interdisciplinary and/or innovative nature of the work
• The extent to which the research has started to impact the field
• The researcher’s reputation and capacity to continue being an agent of change

Professor Moffitt’s award-winning work spotlights a major issue of professional accountability. While the vast majority of legal disputes in the United States resolve via negotiated settlement, he finds, fewer than 1% of reported legal malpractice cases concern the settlement process. And when clients do assert settlement malpractice claims, they rarely succeed. 

Examining why lawyers aren’t held accountable when they fall short in these legal negotiations, Professor Moffitt diagnoses the problem. Today’s legal malpractice system operates on three basic assumptions, he notes: (1) a lawyer’s strategic judgments should enjoy the highest level of deference; (2) any mistake a lawyer makes will be reflected in dampened prospects in litigation; and (3) clients’ compensable interests are bounded by the remedial powers of the court. But those assumptions rest on an outdated view of lawyers as litigators. In this age of settlement, Professor Moffitt asserts, the malpractice system needs a reframing to recognize the important role that lawyers play in settlement negotiations, and to protect clients who rely on their lawyers’ settlement expertise.

Considering this year’s Dispute Resolution Advancement Award nominations and submissions, the award selection committee comprised of Elayne E. Greenberg, Assistant Dean for Dispute Resolution Programs, Professor of Legal Practice, and Director of the Carey Center, and St. John’s Law Professors Keith Sharfman and Jeff Sovern recognized Professor Moffitt’s paper as presenting outstanding scholarship in the field.

“Professor Moffitt’s research calls attention to the importance of realigning our standards for lawyer accountability with the realities of our settlement focused legal culture,” Professor Greenberg says. “It also compels us to reconsider additional realignments in our legal education, clients’ justice expectations, and our ethical standards to ensure the integrity of our settlement-focused justice system.”

Professor Moffitt will accept the Dispute Resolution Advancement Award at a virtual ceremony hosted by St. John’s Law on Monday, April 4, 2022. “It’s an honor to receive this year’s award, and to be associated with the Carey Center’s outstanding work and mission” he says. “I wrote ‘Settlement Malpractice’ with love for the field of ADR. I’m not sure that good scholars should have a purpose, per se, since that might risk affecting the openness with which one explores a topic. But to the extent I had a purpose here, it was to shine a detailed, careful, even sympathetic light on a dynamic of which many of my friends and colleagues in the field seemed not to be aware. My hope is that others will build on the research and will be part of the evolving conversation about how best to assure that settlements serve clients, the public, and justice as well as possible.”