PLI disclosure hearing report: Lubbock, October 29

Nine lawyers braved cold, wet conditions to testify at a public hearing in Lubbock on whether lawyers should be required to disclose to clients if they carry professional liability insurance. Eight of the nine voiced opposition to a disclosure requirement; one expressed her support. The Supreme Court of Texas has asked the State Bar Board of Directors to recommend whether such a policy should be adopted. The Board will vote in January.

Three West Texas lawyers who serve on the Board of Directors attended the hearing — Guy Choate of San Angelo, David Copeland of Midland, and Kyle Lewis of Dumas. State Bar President Roland Johnson of Fort Worth and his immediate predecessor, Harper Estes of Midland, provided background on why the hearing was taking place and answered questions put to them by members of the audience. Jonathan Smaby, executive director of the Texas Center for Legal Ethics, moderated. Recordings of the Lubbock hearing and the five previous public hearings around the state are available at www.texasbar.com/plidisclosure.

Among the points raised during public testimony:

  • A representative of the 100-member Lubbock Criminal Defense Lawyers Association spoke against the proposition. The goal is consumer protection, which is a noble goal, he said, but this is an oversimplified solution. In fact, it's a solution looking for a problem. There is no public outcry on this issue. The only people in favor I know of are legal malpractice lawyers, who have a pecuniary interest in the matter. I find the proposal offensive because of the paternalistic aspect. There will be a stigma to solo and small-firm practitioners, especially those who practice criminal defense. Disclosure would be misleading. I can't make sense of these policies and suspect the public won't be able to either. I am also concerned about the impact on pro bono. Consumer protection is a noble goal, but this proposal would only undermine the attorney/client relationship.
  • A professor at Texas Tech University School of Law who practiced 13 years before joining the faculty, is coauthor of a legal malpractice book, and is a former chair of the Texas Supreme Court Grievance Oversight Committee, but who was speaking only of her personal views, supported requiring insurance disclosure. If you're buying a car and one model has airbags and another does not, wouldn't you want to know that? A lawyer with insurance provides a safety net. Doesn't a family deserve to know that? We know that consumers know how to make informed decisions. It comes down to leveling the playing field. As accomplished professionals, we owe the public that duty. We need to elevate public protection over personal preference. You won't hear from many people who support it, but this is not a popularity contest. Consider the message we will send. Do you want to elevate lawyer self-interest over public protection?
  • A trial lawyer from Amarillo who is a past chair of the Commission for Lawyer Discipline said requiring insurance disclosure would offer minimal consumer protection. Lawyers already have a fiduciary duty that you disclose important information. That duty is broad and set in case law. It is dangerous to add specific duties on top of the broad fiduciary duty. If lawyers are required to disclose, it follows that they would need to disclose the amount, the deductible, what may or may not be covered, whether the lawyer is current on payments, and on and on. If that plays out, it would needlessly strain attorney/client relationships. Prospective clients are free to ask any questions at the outset. We already have one disclosure requirement -- the existence of the grievance system, which I'm for — we don't need to add another. I am adamantly opposed to putting an insurance disclosure requirement into the disciplinary rules. It has nothing to do with attorney discipline. We would burden of the Office of Chief Disciplinary Counsel. It would be a bad precedent to add something like this. We have withstood adding politicized rules. The next time something comes up, the temptation will be to just add it to the disciplinary rules.
  • A self-described "street lawyer" who takes "anything that walks through the door" and served on a grievance committee for five years was opposed to the measure. I'm for ethics and everything to make lawyers better. I've been practicing since 1987 and have never had a client ask whether I have any kind of insurance. If I had, I would not have taken that case. I don't want that client. It's not worth the hassle. Insurance disclosure will leave us like deer with a big target on our backs. Hypothetically, if I donated this facility [the hearing took place in the Donald Hunt Courtroom at the Texas Tech University School of Law Mark and Becky Lanier Professional Development Center] and am self-insured, you're going to punish me? At the other end, you're going to punish those who hang out their shingle? The future of our profession is outside those doors. There's a percentage who will be good lawyers who will not be picked up by law firms. This proposal will hurt them.
  • A county attorney who spent 33 years as a trial lawyer in Houston, served on the State Bar Board of Directors, and has "handled my share of legal practice cases" opposed the measure. This idea has been rolling around since at least the 1970s. I have never heard a good argument for it. The word that comes to mind is "specious" -- it has the ring of truth but is false. I am astonished that we're talking about this today. It's like trying to slap down creeping socialism. This is a bad idea. I say amen to the speakers before me. Let's kill this thing now and be done with it.
  • A plaintiffs lawyer in Lubbock who said he's "just a lawyer" and doesn't have the pedigree of the speakers before him opposed the proposal. I do disclose that I carry professional liability insurance during the initial interview. I have never in 33 years had a client -- not one -- ask if I have it. I don't know why it's an issue to the State Bar. I have an idea of why it's important to the Supreme Court. When I tell people, it invites the question: Why are you telling me? It throws muddy water on a good interview. I tell them for a selfish reason: To tell them that I've never had to use it. I don't know why we're here today. I oppose the measure, as does everyone in my office.
  • The president of the South Plains Trial Lawyers Association said the organization's 50 members are not in favor of insurance disclosure.
  • A Texas Tech alum, also licensed in New Mexico, who has been practicing for 15 years said the proposal is a matter of grave concern to sole practitioners. Lawyers are very much against this proposal. You don't see this requirement of any other profession. There's no requirement that drivers have a bumper sticker indicating they have insurance. Coverage is protected as a trade secret. New Mexico recently adopted a disclosure requirement. I think this is a horrible idea. I opposed it then; I oppose it now. If disclosure is required, it should be done on the State Bar website. Were it not made public, it would not be made into a bargaining chip. We should not be doing this. I have never had a client ask or be concerned about professional liability insurance.
  • A young lawyer only a few years out of law school who practices in Tahoka opposed the measure. I went to Baylor for undergrad, SMU for a master's, and Baylor again for law school. I mention this because all three degrees cost a lot of money. Malpractice insurance would be prohibitively expensive. If my clients have to hear that, even if it wasn't an issue when they came through the door, it would become one. That was what I wanted to get away from. I grew up in Dallas. I moved to Tahoka so I wouldn't have to practice in a big firm.

For more information, including the reports of a State Bar task force and Supreme Court committee that previously studied the issue and made recommendations, go to www.texasbar.com/plidisclosure.

PLI disclosure hearing report: Dallas, October 28

More than 50 lawyers and members of the public took part in a lively public hearing on whether lawyers should be required to disclose to clients if they carry professional liability insurance. The Supreme Court of Texas has asked the State Bar Board of Directors to make a recommendation on the issue. The Board is soliciting input in advance of its anticipated January 2010 vote on the issue.

The hearing — the fifth in a series of seven around the state — took place at the Belo Mansion, home of the Dallas Bar Association. Several State Bar directors from North Texas were on hand, including Talmage Boston, Beverly Godbey, Tim Mountz, Mark Sales, Steve Bolden, John Jansonius, and Dan Micciche of Dallas; Janna Clarke and Mark Daniel of Fort Worth; Deborah Gagliardi of Arlington; Mike Gregory of Denton; John Hatchel of Woodway; and Chad Baruch of Rowlett. State Bar President Roland Johnson of Fort Worth provided an overview of the issue. Jonathan Smaby, executive director of the Texas Center for Legal Ethics, moderated the discussion. An audio recording of the hearing is available at www.texasbar.com/plidisclosure

Ten lawyers testified publicly. With varying levels of vehemence, nine expressed opposition to a disclosure requirement while one voiced support for the measure. Other attendees indicated their positions in writing. Of those, 19 opposed making insurance disclosure mandatory while one supported the proposal.

Among the points raised during public testimony:

  • A sole practitioner with 30 years' experience said she was very strongly opposed to requiring insurance disclosure. I have never had a client ask if I have insurance and I've only had a few ask if I'm board certified. All that they care about is my experience. I've asked colleagues in other fields. Not one said they would ask a lawyer about insurance coverage. No other profession requires this. We deal with people's lives. It's been said this is an issue to promote public protection. I beg to differ: It's a back-door way to require malpractice insurance. As a solo, I've decided not to carry malpractice insurance. I take as much CLE as I can. I would rather put money into a client victims' fund or pro bono. I hope the Supreme Court hears loud and clear: This is not an issue. We don't need insurance disclosure.
  • A sole practitioner licensed since 1969 said he was totally against the plan. This is the proverbial "camel's nose under the tent." I remember when MCLE was just a good idea. This is another good idea that will go to the extreme. In the abstract, it sounds like a wonderful idea. It will result in endless lawsuits, three-fourths of which won't result in anything. The idea that this would be a grievable matter is another example of government-applied pressure on daily life. The cost will be paid by clients. I don't do true pro bono work; I may charge clients $25/hour or $50/hour so that they invested in the representation. If disclosure is required, that may end. Legal malpractice lawyers are in business to make money. They'll say, "Look, he's a lawyer, he's got liability, sue him!"
  • A small-firm plaintiffs lawyer in Sherman who carried professional liability for many years said doing so only made him a big target. After 25 years of carrying a $1 million policy, I decided to drop it. The next time I received a letter, I said I don't have insurance and never heard from the lawyer again. After tort reform, doctors are no longer a good target. All we need is a bunch of lawyers with $1 million policies. If disclosure is required, we'd all feel pressured to get policies. I have probably done 1,500 wills. Do I have to track all of them down and disclose? What about a person who comes through door? It's going to be embarrassing for lawyers. I suspect the pressure is coming from the insurance companies. 
  • A Houston lawyer who could not attend the Houston public hearing said he is a proud personal injury lawyer. I was in Dallas to meet with clients. They didn't ask about insurance. They were more concerned with the Supreme Court and the Legislature taking away the right to seek compensation for negligence. You don't see a lot of legal malpractice cases on the books. There's a reason for that. Even if you have insurance, it's incredibly difficult to prove. You have to prove a case within a case. What is this issue about? It's a paternalistic Supreme Court deciding what we should do. It will be a sad day when insurance dictates what's ethical in Texas. What happens if after signing we cease to have coverage? Is that breach of contract? I don't believe this is right. I may be the only lawyer who has pursued a doctor who didn't have insurance. This proposal is misguided and should be rejected.
  • A former president of the Irving Bar Association whose small firm carries professional liability insurance said the proposal is ridiculous. What is the Supreme Court trying to do? The majority of lawyers are solos or small-firm practitioners. We need to send a clear message to the Supreme Court and the State Bar Board of Directors to strike this down. In my reading, I can't find any other profession that requires this. Please vote against this.
  • A lawyer who handles legal malpractice cases said that, as usual, he found himself in the minority. The absence of insurance does not stop you from being pursued. I respectfully disagree with the "camel's nose under the tent" analogy. There are many states that require disclosure. From the standpoint of one who sees a lot of people who are unhappy with their representation, I approach this from the perspective of what's best for the client. My experience is that people who have assets they need to protect have insurance. I am sympathetic to the concerns of small-firm practitioners, but I do believe disclosure would benefit clients.
  • The president of the Tarrant County Bar Association, testifying in his personal capacity, said he is against the proposal. The fact that you disclose today misrepresents what coverage you will have tomorrow. Disclosure would open a Pandora's box. What's going to be next? If i have a $1 million limit, can I not try a $2 million case? If I don't have insurance, does that mean I'm a bad lawyer or a very good lawyer? If a client asks, I absolutely have to disclose. But do I then have to disclose what social organizations I belong to? I also believe there will be disparate impact. What about the criminal bar? You basically can't sue a criminal lawyer for malpractice. 
  • The president of the Ellis County Bar Association, speaking of his personal views, said he had not talked to one person in favor of insurance disclosure. Most have a general practice. What would this mean for a solo with a mixed civil/criminal practice? As a young lawyer, this is just an added burden. Most of the young lawyers I talk to plan on going bare. What if I get a tractor/trailer case that goes above my policy? Do I have to associate with other counsel? Do I have to check files monthly? Quarterly? If it's not broke, don't fix it.
  • A sole practitioner agreed with previous speakers' comments and underscored the disparate affect disclosure would have on small-firm practitioners and minority lawyers.
  • A former president of the J.L. Turner Legal Society in Dallas who currently serves as chair of the State Bar Council of Chairs related two questions he had received: "Are there fewer grievances in the states that have implemented insurance disclosure?" "Are there more lawsuits or fewer lawsuits in those states?"

For more information, including the reports of a State Bar task force and Supreme Court committee that previously studied the issue and made recommendations, go to www.texasbar.com/plidisclosure.

 

PLI disclosure hearing report: El Paso, October 27

During the fourth of seven public hearings the State Bar of Texas is holding around the state on whether lawyers should be required to disclose to clients if they have professional liability insurance, all six of the attendees who testified publicly spoke against mandating disclosure. At the request of the Supreme Court of Texas, the State Bar Board of Directors will vote to make a recommendation to the Court during the Board's January 2010 meeting.

The public hearing took place at the El Paso Commissioners Courtroom. State Bar President Roland Johnson attended, as did three members of the State Bar Board of Directors: Jeanne C. "Cezy" Collins and Cori Harbour of El Paso, and Pablo Almaguer of McAllen. Harbor is president of the Texas Young Lawyers Association; Almaguer serves as one of four minority directors on the Board. Jonathan Smaby, executive director of the Texas Center for Legal Ethics, moderated the discussion. An audio recording of the hearing is available at www.texasbar.com/plidisclosure.

Among the points raised during public testimony:

  • "If coverage becomes mandatory, you can have my bar card," a private practitioner said. It's senseless. Professional liability insurance is a notorious litigation-breeder. It advertises: "Sue me!" My clients are looking at six months in jail on DWI charges, not $40 million contracts. I don't know what good it would do except to send cases to other lawyers. I didn't go to law school to get rich. I went to law school to help people out. 
  • An El Paso lawyer who served on the State Bar Task Force on Insurance Disclosure but was speaking only of his personal views, said that his litmus test is to consider if disclosure is in the best interest of clients. If so, he would vote yes. The answer, however, is unknown. There is no evidence on the issue. The American Bar Association commissioned no studies. The State Bar did a phone survey, but did not ask the questions in a manner to elicit how important insurance disclosure is when considering hiring legal representation. If disclosure is required, it should not take the form of a disciplinary rule. It should be like paying dues or fulfilling MCLE and should be posted to the State Bar website. 
  • A small-firm practitioner in El Paso who handles primarily real estate, probate, and bankruptcy foreclosures said he is strongly opposed to mandatory disclosure. His firm has carried liability insurance since he joined in 1996. There has been one frivolous claim. The types of insurance coverage offered are "all over the map," he said. I don't see a reason for the State Bar to mandate. The coverage is for the lawyer. It does nothing for the client. I've never had a client ask if I carry malpractice insurance. I've questioned all the members of my firm. They all oppose. I polled 14 colleagues, five of whom are board certified. Not one wavered. They were unanimous in their opposition. It is not in the best interest of the client. 
  • A government lawyer who practiced seven years in private practice said he had never had anyone ask about insurance coverage. If so, I'd probably have referred the case, he said. It seems a very adversarial question to start the attorney-client relationship. If there's no benefit, why should we do it? If disclosure is required, it should not follow the Supreme Court Grievance Oversight Committee's recommendation that it be a disciplinary rule. It should be handled administratively. 
  • A sole practitioner said that in his 37 years of practice he had never had anyone bring up the subject of professional liability insurance and never had anyone threaten to sue. As president of the family law foundation in El Paso, he is especially sensitive to the financial burdens it would place on family law practitioners. We're in the hinterlands. We're not trying to divide $100,000 estates. We're trying to figure out who gets custody of the Lone Star Card. Those of us in the trenches would say: If it ain't broke, don't fix it. I tell clients, If they have an issue, file a complaint. To add an additional tier to that process is not a good idea.  
  • A sole practitioner who has been licensed for 52 years sees the proposal as an attempt to sell more insurance. I'm not for it. This would result in the further commercialization of the practice of law. I have a part-time practice and am not making enough to pay insurance. This would hurt solos by allowing bigger firms to say, "I've got more malpractice insurance."

For more information, including the times and locations of future public hearings, go to www.texasbar.com/plidisclosure.

PLI disclosure hearing report: Houston, October 16

Thirty-five people, almost all of whom were lawyers, attended a public hearing in Houston on whether attorneys should be required to disclose to clients whether they carry professional liability insurance. The Supreme Court of Texas has asked the State Bar Board of Directors to make a recommendation on the issue.

Ten attendees testified publicly. All expressed opposition to a disclosure requirement, with a few offering their preferences should such a policy take effect. An additional 17 attendees registered their opinions in writing. Fifteen of those expressed opposition to disclosure, with two indicating “No opinion.” No one offered support for disclosure, although State Bar President Roland Johnson, in the interest of fairness, read into the record from a task force report the primary arguments in support of disclosure.

Several State Bar directors were on hand, including Glenn Ballard, Tim Belton, Warren Cole, Bert Jennings, Bill Ogden, Tommy Proctor, and Travis Sales. Johnson moderated the discussion, which took place at South Texas College of Law. A digital recording of the hearing is available at www.texasbar.com/plidisclosure.

Among the points raised during public testimony:

  • The president of the Texas Criminal Defense Lawyers Association said the organization strongly opposes any requirement to disclose, but, if disclosure is required, believes criminal defense lawyers should be exempt from the requirement. To sue for malpractice, you must prove innocence, he said. Moreover, falsely accused individuals have recourse up to $80,000. A disclosure requirement would open the floodgates to frivolous litigation.
  •  A family law practitioner said many people involved in family law matters are not happy. Sometimes justice is served when your client loses, he said. It doesn’t mean you’re a bad lawyer. These are claims-made policies, not occurrence policies like car insurance. If disclosure were required, the public would be confused and think, “If there’s a bad result, I can make a claim.” A disclosure requirement would cause even more confusion than the “Not Board Certified” requirement for lawyer advertising did. All of these policies are self-eating — they’re reduced by all payments, including defense costs. This doesn’t even take into account the arcane terminology in these policies. It may take two hours to explain to a client. Does the lawyer bill for this time?
  •  A young lawyer who handles mostly personal injury and collections work said that in five years, he has almost never had an individual ask about insurance. If disclosure is required, it will mislead the public about what is important in the attorney-client relationship. As an individual practitioner, I will be at a competitive disadvantage, along with other sole practitioners who don’t have insurance, he said. You’re going to cut out sole practitioners for a reason that’s not that important.
  • A sole practitioner with 15 years’ experience expressed concern that disclosure would be prohibitively expensive to his practice. It would very likely end my practice, he said. I do work for many insurance companies. Not once has one of them asked me if I have malpractice insurance. I am wary of an increasing nanny state. We all should have freedom to contract. If I have to start affirmatively telling clients that I don’t have insurance, my business will drop significantly. It leaves the perception of lack of professionalism. I have never had a grievance filed against me. That doesn’t mean all clients have been 100 percent happy. But I know what I’m doing. Please do not endorse this proposal. If clients think it’s important, they will ask.
  • A newly licensed lawyer with a general practice said he does carry professional liability insurance, but only because as a new lawyer it is comparatively affordable. I want to discuss the issue from the consumer’s side, he said. Will costs go up? I believe so. My clients tend to be those who have never had representation before. They make just enough not to qualify for legal aid. Disclosure will increase the costs of practice. It will interfere with certain clients’ being able to afford legal representation. When I opened my practice, I asked several lawyers for advice on whether to carry insurance. They said: “If you want to get sued, get insurance.” Disclosure would create a market for lawyers suing other lawyers.
  • A sole practitioner who has been practicing for 24 years and carried insurance that entire time said she was “totally and absolutely against” the proposal. It seems aimed at sole practitioners, she said. I will really question whether I go on, despite the fact that I’ve always carried it.
  • A lawyer licensed since 1983 said the proposal was simply “a bad thing.” You would be adding a layer of negativity to the legal profession. I read recently in the Texas Bar Journal that we’re serving only 24 percent of those in need. Let’s get rid of this disclosure issue and get back to real issues.
  • A criminal defense lawyer licensed since 1996 who handles a lot of court appointments was concerned that she didn’t see any exclusions in the proposal. PLI disclosure would foster litigation, she said. In most cases, people incarcerated are "not guilty." This would create a new industry, with additional lawyers doing additional work. It would be an unreasonable burden on criminal defense lawyers and small-business owners.
  • A lawyer in his 30th year of practice without PLI coverage said the proposed disclosure requirement would negatively affect public policy cases. I don’t know if we could have advanced some of the cases I’ve worked on absent an incredible discount of fees. From a public policy standpoint, I’m opposed. If the idea behind the proposal is to create for consumers a way of knowing how judgment-proof a lawyer is, couldn’t that be better achieved, hypothetically speaking, if mandatory disclosure of net assets were required? If the public wants a pot of money to shoot at and to know how big the pot is, wouldn’t that be a better solution? I throw that out there not out of support, but to test the integrity of the concept.
  • A law professor opposed the measure for two reasons: First, dislosure puts an attorney taking a new client in a bind. Because the attorney has immediate responsibilities to the client, the attorney must explain that the attorney’s and client’s interests differ. It immediately puts that relationship in conflict. Second, I don’t see much benefit. I talk with a lot of general counsel. If they’re interested, they ask. If disclosure is made, the immediate inference in uninsurability. The negative inference is unwarranted.

For more information and for a complete list of upcoming public hearings around the state, visit www.texasbar.com/plidisclosure.

PLI disclosure hearing report: Harlingen, October 15

Four attorneys attended the second public hearing in Harlingen – all of them speaking against lawyers having to disclose whether or not they have professional liability insurance to prospective clients. One of those attorneys traveled three hours from San Antonio to testify after having surgery the day before preventing his attendance at the Wednesday hearing.

Testimony of those who attended included:

  • Professional Liability Insurance covers only negligence and the majority of times where a lawyer has hurt a client it is not negligence.
  • This discussion must be a special interest issue.
  • If a lawyer is going to have to disclose issues that might impact representation there are other things more germane than insurance (examples: health, financial status, personal problems) What is so special about insurance that it should be disclosed?
  • The American Bar Association is never happy with the status quo [so the adoption of a model rule by the House of Delegates might or might not have relevance].
  • What public policy does this proposed disclosure truly serve?
  • What harm has resulted in the past that has caused the Supreme Court of Texas to offer this proposal?
  • People do not enter into personal or business relationships thinking about future mishaps and this proposal would add that context to the front end of the attorney-client relationship.
  • This proposal, if implemented would make lawyers more vulnerable to being sued by clients unhappy with the result of a case.
  • Clients will be worried about representation but will not be better protected with this disclosure.
  • The public looks at the issue globally without information/knowledge about what professional liability insurance covers or does not cover.
  • What percentage of lawyers are sued annually? The grievance process exists to punish lawyers who do not live up to their professional obligations.
  • Insurance disclosure is a ticket to draw people in to sue attorneys.
  • After more than 19 years in consumer bankruptcy practice, had several complaints filed with the State Bar that were dismissed because there was no misconduct. Those complainants would have been more likely to file suit if I had insurance and there is a likelihood that I would have had to pay even though the complaints were baseless.
  • This is a non-issue. Attorneys are not required to have professional liability insurance and if a client asks, we are already obligated to provide that information.

(Visit www.texasbar.com/plidisclosure for more information and background on this issue as well as a calendar of upcoming hearings.)

PLI disclosure hearing report: San Antonio, October 14

Of the approximately 60 people attending the first of seven State Bar of Texas public hearings regarding whether Texas attorneys should be required to disclose to the public whether or not they are covered by professional liability insurance, 21 lawyers testified against disclosure and one member of the public testified for “transparency” in all areas of the judicial system including disclosure.

The Supreme Court of Texas has asked the State Bar of Texas Board of Directors to give its recommendation on whether Texas attorneys should be required to disclose to the public whether or not they have professional liability insurance. The State Bar Board has developed a process for obtaining input from attorneys and the public, including a series of public hearings, which began in San Antonio Wednesday. State Bar directors will continue to collect information through their January 2010 board meeting where a vote will be taken with a final report prepared for the Court the first week of February.

State Bar directors at the hearing included Guy Choate of San Angelo; Lisa Tatum, Sylvia Cardona, Allen Dubois, Pamela Gilbert, and LaMont Jefferson of San Antonio; State Bar President Roland Johnson and President-elect Terry Tottenham also attended the hearing which was moderated by Jonathan Smaby, executive director of the Texas Center for Legal Ethics and Professionalism.

State Bar President Roland Johnson opened the hearing with a short overview of the Professional Liability Disclosure Issue and the Court’s request of the State Bar Board of Directors. Directors listened to the testimony and made themselves available after the hearing and over the coming months leading up to the January vote.

A sample of the testimony received at the hearing against requiring disclosure included:

  • The legal profession should not be singled out as the only profession to be required to disclose whether or not practitioners have professional liability insurance.
  • The trust relationship between a lawyer and a client would be immediately compromised once the lawyer discloses whether or not he or she has professional liability insurance.
  • Each firm should be allowed to make the business decision of whether to carry or disclose professional liability insurance coverage on its own.
  • A lawyer’s report of coverage is a snapshot of a moment and does not guarantee he or she will have coverage at the time in the future when a suit might be filed.
  • The profession already polices itself. The Court and the Legislature have reduced the number of lawsuits so it is ironic that this proposal will increase the number of lawsuits.
  • Those practitioners who do wrong and do not follow the rules will continue to break the rules and adding more rules will not clean up that bad behavior by the few who disregard the current codes of good conduct.  If you want to require insurance, do so – but requiring disclosure will not solve any problem.
  • Requiring disclosure of professional liability insurance is a disincentive for lawyers to do pro bono work. Clients will not benefit from such a requirement and small firms will be especially targeted.
  • This proposed requirement would disproportionately impact minority attorneys as most minority lawyers in Texas practice in small firms or solo practices.
  • In Court appointments, the lawyer often meets the client after the appointment is made — the practicalities of implementing disclosure make it impossible.
  • There is a danger that this will become an issue of competence not an issue of insurability. 
  • Consumers are smart and know what they want and what they need. The relationship between an attorney and a client is sacrosanct and forcing the disclosure of whether or not an attorney has insurance on the front end of that relationship plants a seed of doubt.
  • Attorneys take self-regulation seriously and our disciplinary system is real and effective. We do not need an insurance company to be part of that process.
  • How ironic to purport to solve a non-existent problem while simultaneously contaminating the lifeblood of pro bono.
  • Creates same problem of confusing the public that the Bar resolved several years ago when it eliminated the “not board certified” requirement from lawyer advertising.

(Visit www.texasbar.com/plidisclosure for more information and background on this issue as well as a calendar of upcoming hearings. A downloadable audio file of the San Antonio is posted on this page.)
 

Input sought regarding professional liability insurance disclosure

The Supreme Court of Texas has requested that the State Bar of Texas Board of Directors make recommendations by Feb. 5, 2010, regarding whether Texas lawyers should be required to disclose whether they are covered by professional liability insurance (PLI).

During the remainder of 2009, the State Bar will publish information regarding both sides of this issue and collect input via public hearings and other avenues, including this blog.

For background on this issue and the consideration process, please visit www.texasbar.com/PLIdisclosure

To provide your thoughts regarding PLI disclosure, you may leave a comment below or email statebarpresident@texasbar.com