Yow! Mandatory malpractice insurance disclosure is an issue that’s got to be giving State Bar governors major headaches, if not outright nightmares.
Less than a month before the Board of Governors tackles the thorny concept once again, critics are coming out of the woodwork. This month’s edition of the California Bar Journal, the State Bar’s in-house newspaper, contains no less than five letters howling about the Bar’s supposed insensitivity to solo practitioners and small-firm lawyers.
They join a chorus of county bar associations, State Bar committees and the Conference of Delegates of California Bar Associations who have come out against the idea since it was first proposed at a meeting in mid-2006.
What’s got everyone upset is a proposal that initially would have required California lawyers to tell their new clients if they don’t carry malpractice insurance. The idea was to give potential clients notice about whether they would have financial recourse if their attorney acted negligently and lost their case.
Four months ago, a State Bar committee — reacting to sharp criticism even from within the Bar governors’ own ranks — trimmed the concept. In a 4-3 vote, committee members limited disclosure to when it’s “reasonably foreseeable” that an attorney will represent a client for more than four hours.
Even so, in mid-February, the executive committee of the State Bar’s own Law Practice Management and Technology Section sent a letter to the Board of Governors pointing out several flaws in the concept. In that letter, James Menton Jr., chairman of the committee, said that having malpractice insurance doesn’t necessarily mean a lawyer will have the ability to cover a settlement or a verdict against them.
“How will the public react to this type of result?” he wrote. “Will the State Bar of California … be perceived as legislating a scheme that looks good but flies like the Spruce Goose?”
The letters in this month’s Bar Journal were in response to a column in last month’s edition in which State Bar President Jeffrey Bleich tried to defend the compromise reached in December. In his letter, San Jose lawyer John Collins bluntly told Bleich to “get the bar off our backs.”
Ventura attorney Peter Goldenring wasn’t much nicer.
“Please don’t pretend that this is about understanding or caring for solos and small firms,” the Goldenring & Prosser partner wrote. “It isn’t and is yet another example of the State Bar alignment with big firms and a lack of sensitivity to the rest of us. That’s how it’s been for years and nothing seems to have changed.”
San Diego attorney Steven Kaftal called the disclosure rule “just one more burden on those of us in small practice who pay our own bar fees and provide low-cost legal services.”
Bleich, a partner in Munger, Tolles & Olson’s San Francisco office, said the letters reflect his column’s premise that there “is a history of distrust” by solos and small-firm lawyers who believe the State Bar has “some ulterior motive.”
“We’re working very hard to rebuild that trust,” he said. “This is a good proposal. It’s not an attempt to do anything else beyond requiring disclosure to clients who care about this information.”
Bleich said December’s trimming of the original proposal was one step at addressing concerns and that the State Bar has also formed a task force to find some way to reduce the costs of malpractice insurance.
“This isn’t,” he said, “an effort to force people to buy something they can’t afford.” Nonetheless, the Board of Governors’ next meeting on the issue on May 16 at San Jose State University should be a dilly.
— Mike McKee
The good folks at GNIF Brain Blogger introduce a new series on medicine and the law, including medical malpractice. But, it appears that a doctor wrote it and perhaps you guys can shed more light on the issue. Thanks!
http://brainblogger.com/2008/04/17/medicine-and-the-law-part-2/
Posted by: PatientDoneWrong | April 17, 2008 at 07:54 AM