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For several decades, a few Pennsylvania lawyers have grappled — unsuccessfully — with a little known anomaly: To practice medicine, or (in Philadelphia) to work as a master plumber, the licensed professional or tradesperson is mandated to carry insurance to compensate those injured by malpractice. But there is no such requirement for lawyers practicing in Pennsylvania. Even most lawyers do not know of the anomaly. Many are under the impression that there is a state fund to compensate those injured by malpractice, but the Client Security Fund only compensates those injured by lawyer theft, not those injured by lawyer negligence. Pennsylvania’s omission is similar to most other states — only Oregon mandates insurance. Four other states have requirements to inform clients whether the lawyer is insured. The United States differs from most other common law jurisdictions — the United Kingdom, all Canadian provinces and Australia all mandate insurance. The arguments most often made (in private) against mandated insurance tend to make points that the legal profession should not be seeking to publicize. Some leaders of the organized bar contend that some lawyers would appear to commercial insurers to be such bad risks as to be uninsurable and that rates would go up for the law firms that now carry adequate insurance. New Jersey’s Supreme Court recently mandated insurance, but only for those who desire to practice in limited liability partnerships — insurance is required because individual lawyers’ assets are no longer at risk. On Nov. 23, 2002, as the outgoing Schweiker and incoming Rendell administrations were both attempting to find solutions to the medical malpractice crisis, the Pennsylvania Bar Association House of Delegates tabled a proposal that the Supreme Court should add to the annual lawyers’ questionnaire a compound question whether the lawyer had malpractice coverage or the lawyer believed (in the lawyer’s unaudited opinion) that the lawyer’s assets were sufficient to constitute self-insurance. Under the proposal, the answer would have been available only to those who sent a written request to the Administrative Office of the Courts. Several months later, the Supreme Court did act to gather data on the issue by adding to the annual questionnaire for 2003-04 three questions: Whether the lawyer is “currently covered by a professional liability insurance policy” and the name of the insurer and the policy limits. Whether the lawyer is engaged in the private practice of law involving representation of clients drawn from the public. Whether the lawyer has unsatisfied legal malpractice judgments, and if so, the date, court and amount of the judgment(s). The answers to the 2003-04 questionnaire have provided the Supreme Court with the first hard data concerning the number of lawyers who are uninsured and one measure of the impact of lack of insurance on the client population. We commend the Supreme Court for taking that first step. And now that the justices know the data, we urge the Supreme Court to take three additional steps. First, the court should disclose to the profession the extent of the problem — whether the precise aggregate statistics are disclosed (such as the percentage of uninsured lawyers and the number and dollar amount of unsatisfied judgments), the court should make at least a summary disclosure of the data. Second, the Supreme Court should immediately proceed to adopt a rule to require disclosure to clients of whether a lawyer has a minimum level of current malpractice insurance. Disclosure modeled on the South Dakota rule might be sufficient — under that rule, an uninsured lawyer must print on the lawyer’s letterhead, in type no smaller than is used for the lawyer’s name, a disclosure that the lawyer does not carry malpractice insurance. Third, the Supreme Court should assemble a task force, including those leaders of the Pennsylvania Bar Association who have been concerned about the issue, to plan for a move toward mandatory lawyer malpractice insurance, even if the process takes several years. We urge that, after such thorough preparation, the Supreme Court of Pennsylvania should act within the next two years to mandate malpractice insurance for all lawyers in private practice, allowing only a few narrowly drawn exceptions, such as for semi-retired lawyers handling only pro bono cases and house counsel for corporations. Our profession should finally require of ourselves the insurance coverage that we demand of others.

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