A pair of lawyers worked hard to win a malpractice lawsuit against one of their own, but it’s very likely they won’t see a dime for their efforts.
The reason: The attorney whose actions warranted the malpractice verdict of $537,787 did not have malpractice insurance. Additionally, lawyer Howard A. Lawrence apparently has no retrievable assets that could be used to pay for his errors.
Now, one of the attorneys who might not see payment for his efforts, solo lawyer Raymond Rigat of Clinton, says the state should consider changing its rules to require malpractice insurance for attorneys. "This case highlights what I think is a pressing need," Rigat said. "If this case does anything, given the size of the award, is I think it underscores the need for the Connecticut Judicial Branch to review its rules."
The lead attorney in the case, Erskine D. McIntosh, who has a solo practice in Hamden, said the favorable decision on the malpractice claim was bittersweet, because it doesn’t appear his client, 74-year-old Norma Bell, will be able to collect.
"I’m happy for Mrs. Bell, I’m happy she got her day in court," he said. "But at the same time, I’m sorry she wasn’t able to benefit from this case financially." By all impressions, it appears Lawrence is judgment proof.
Rules regarding malpractice insurance for attorneys have been a sore subject for many years. And not just in Connecticut. When a proposal to pass a model rule to require coverage for all lawyers was raised by the American Bar Association, it was fought in the committee stage.
Last year, the Connecticut legislature briefly considered a proposal that would have made it a requirement for lawyers to disclose publicly if they did not have malpractice coverage. The idea didn’t make it out of the Judiciary Committee.
There are two main reasons offered for requiring attorneys to be covered by insurance: It protects clients and it protects attorneys.
There seem to be even more reasons, however, why people oppose such a mandate.
For one thing, most professional malpractice policies don’t provide coverage in the event of malfeasance or professional misconduct, which account for many malpractice claims. Another argument cited by Judicial Branch Rules Committee members is that if all lawyers had malpractice insurance, that would result in more malpractice lawsuits.
But even though only one state in the nation, Oregon, requires insurance for lawyers, Rigat said it might be high time to discuss the need. "I think this case really highlights something a lot of people don’t know, that lawyers don’t have to be insured," he said.
Parking Lot Ownership
The whole case started with a mistaken assumption on the part of lawyer Howard A. Lawrence.
On August 25, 2006, Norma Bell was walking out of a Stop & Shop supermarket in Ansonia with her groceries when she fell in the parking lot. As a result of her fall to the ground, Bell suffered a concussion and required surgery.
Bell contacted Lawrence to represent her in the personal injury lawsuit that followed. The attorney sought damages for her medical expenses and pain and suffering. According to court records, Lawrence did not fully explore who owned the parking lot when he filed the lawsuit on Bell’s behalf against Stop & Shop as the sole defendant.
The supermarket company, represented by attorney David J. Mathis in Hartford, argued that the lawsuit against store as the sole defendant was flawed because Stop & Shop did not control or maintain the parking area, which is shared with other businesses. On that legal argument, Mathis filed a motion to dismiss, which was granted by Superior Court Judge Maureen Keegan in New Haven.
At that point, Bell was referred to another lawyer, McIntosh, to represent her in a malpractice claim against Lawrence, McIntosh homed in on the personal injury lawyer’s failure to check on the parking lot jurisdiction.
"The central wrong-doing was, whenever you have a premises liability case, the first thing you do, particularly when a person slips and falls outside of a business, is you do a title search to see who owns the property," McIntosh said. "Because usually, it’s ultimately the landowner’s problem. So number one, he didn’t do that."
The next thing Lawrence did wrong, McIntosh said, was he waited until the statute of limitations had nearly tolled to file the lawsuit, which left him little time to prepare the case. Finally, McIntosh said, Lawrence "never appealed that the trial judge made a mistake by dismissing the case in Stop & Shop’s favor."
McIntosh said there were a number of things Lawrence could have done after the judge dismissed the initial suit, including amending his complaint to bring the landowner into the lawsuit.
One of Lawrence’s defenses was ailing health. He voluntarily forfeited his law license in 2012, after the malpractice lawsuit was filed, citing health problems. During the malpractice trial before Judge Trial Referee John Flanagan, Lawrence failed to make an appearance at more than a few hearings. A default judgment was entered against him, leading to a hearing in which the damages were assessed.
It’s unclear exactly when the two lawyers who went after Lawrence on the malpractice claim learned he no malpractice insurance, but McIntosh indicated it was sometime during the discovery phase of lawsuit. Both he and his co-counsel, Rigat, say that many people, even lawyers, assume that all attorneys have malpractice insurance. "I can’t imagine flying without it," Rigat said.
‘A Lot Of Opposition’
Studies of how many lawyers are not insured against malpractice vary, but nationally average between 10 and 20 percent.
Connecticut has never required malpractice insurance for attorneys, although attorneys who handle real estate closings are often required to show proof of insurance by lending organizations before handling any transaction.
Large firms provide malpractice insurance to all of their lawyers. Public attorneys and in-house counsel are also protected with malpractice policies paid for their employers.
Lou Pepe, who is co-chair of the Connecticut Bar Associations professionalism and CLE section, said the idea creating a Practice Book rule requiring lawyers to advise clients of the insurance coverage they have, or lack thereof, in retention letters came up a couple of years ago.
"Those who opposed it said it would invite malpractice suits," he said.
Susan Cartier Liebel, a Connecticut attorney who is the founder of Solo Practice University, which offers career training for lawyers, has written about legal malpractice insurance on websites and blogs. "It’s not that I’m against the idea of people having malpractice insurance," she said, adding the focus shouldn’t be about protecting the clients. "Like homeowners’ insurance, the focus [of whether an attorney chooses to buy malpractice insurance] should be based on their interest in protecting [their own] assets."
Malpractice insurance rates average about $7,000 per year for an attorney, which can pose a financial burden on a small firm with one or two lawyers. Cartier Liebel said a rule requiring insurance would create unneccessary hurdles, especially for new lawyers. "Why make it a requirement before a new firm even gets out of the gate?" she said.
Any legal malpractice case in Connecticut requires what McIntosh referred to as "a case within a case," meaning one must prove that the plaintiff had a legitimate claim for damages in the initial case, known as viability of the claim.
The plaintiff then must show that the actions of the lawyer caused that claim to be lost.
Since a default judgment of fault was entered against Lawrence, the main question was the amount of damages to be awarded.
McIntosh said in the damages phase of the malpractice case, he convinced the judge trial referee that Bell’s fall caused her ongoing medical problems. As a result of her injuries, which included a severe facial scar and serious losses of memory, Bell was awarded $187,781 for the injury and $350,000 for the pain and suffering that resulted from Lawrence’s ineptitude in handling the matter.
Lawrence has filed an notice of intent to appeal the malpractice decision. He did not respond to a request for comment.
Even though it appears Lawrence is judgment proof, McIntosh said he continues to look for attachable assets. "That process is continuing at this time," he said.•