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Don’t assume that because there aren’t fistfights breaking out at The Palm in Philadelphia that local lawyers aren’t deeply divided over how their profession should respond to the malpractice insurance issue. From the Philadelphia Bar Association’s Board of Governors to The Legal Intelligencer‘s editorial board, practitioners are debating how, whether, or to what degree Pennsylvania’s lawyers should be compelled to insure themselves against the possibility of malpractice suits. The state Supreme Court appears ready to implement a Rule of Professional Conduct that would require attorneys to tell clients whether they are insured. Pennsylvania would join the handful of states that impose such a requirement. Though proposed Rule 1.4(c) stops short of calling for mandatory coverage, many think a “direct notice” requirement would place them in a Catch-22: Tell your clients you aren’t insured, and they might infer that you’re tainted goods and find a new lawyer. Disclose to your clients that you are, in fact, insured, and you could become a target for lawsuits. Some are hoping that the justices will look favorably upon requests for an “indirect notice” rule. Under that format, the Administrative Office of Pennsylvania Courts would keep a record of who’s insured and who isn’t, and the onus would be on clients to find out whether their lawyers have coverage. But even that won’t offer much protection, given the realities of the “Google Age,” some critics say. And then, of course, there are those who feel that lawyers should be required to insure themselves, just like physicians and motorists are. It is not yet clear what the Supreme Court will do. But with the comments period over as of Friday, lawyers need to be prepared for the changes that January 2006 will likely bring. NO CONSENSUS FROM BAR When the Philadelphia Bar Association’s Board of Governors discussed Rule 1.4(c) at its meeting last week, the opinions on the subject were almost as diverse and numerous as the board’s members. Board member Joseph Prim, who co-chairs the bar’s solo and small firm committee, said that the rule change would adversely affect those with smaller practices who might have a hard time coming up with “malpractice insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year.” Lawyers lacking that level of coverage would be required to inform their clients under the proposed rule. George Newman, the criminal justice section’s representative to the board, voiced his strong disapproval of the possibility of the rule’s implementation, given that in his experience, criminal attorneys are so infrequently the subject of malpractice suits that many of them forego coverage altogether. But fellow criminal defense attorney Daniel-Paul Alva, the board’s vice chair, noted that it is possible for lawyers in their practice area to get sued — it’s happened to him several times, he said. Alva said he isn’t excited at the prospect of “telling clients up front” that he is a “target” for litigation. But at least two members of the board who are plaintiffs attorneys said they are in favor of a mandatory coverage requirement. If doctors and car owners are required to pay for coverage, board member Ronald Kovler asked, “Who are we to object?” Mark Tanner, whose practice focuses on medical malpractice work, argued that the bar association should come out in support of mandatory malpractice coverage. Paul Kazaras, assistant executive director of the bar, reminded the board during his presentation of a resolution on the topic that the Supreme Court has not released data on the extent of malpractice coverage that was obtained during a two-year survey of the state’s practitioners. Kazaras said speculation places the rate of lack of coverage at 30 percent around the state and at 5 percent in Philadelphia. Several board members expressed the belief that the justices have not released the survey’s data because the figures reveal that many attorneys are not insured for malpractice. LACK OF DIALOGUE Bar leaders present at the board meeting talked about the way in which the high court’s proposal of the rule has been handled. Vice Chancellor Alan Feldman said he thinks this marks yet another occasion on which the justices have failed to consult the bar association about a matter of high importance to the profession. (At the Philadelphia Bar Association’s 2004 Bench-Bar conference, Chief Justice Ralph J. Cappy acknowledged that the court had “circumvented the normal [lawyer feedback] process” in instituting the recent rules designed to address the medical malpractice “crisis” in Pennsylvania. While the proposed Rule 1.4(c) was published for consideration by practitioners, the justices did deny a Pennsylvania Bar Association request to extend the comment period.) Chancellor Andrew Chirls echoed Feldman’s sentiment. “I lament the lack of interaction between bench and bar,” Chirls said. Ultimately, the board unanimously approved a resolution that supports the Supreme Court’s right to push for changes that will protect clients, but opposes the proposed rule as currently written and urges the justices to “seek additional input from the organized bar before implementing any such rule change.” In a recent letter to the chair of the Supreme Court’s Disciplinary Board, which officially proposes professional conduct rules in Pennsylvania, Chirls noted a number of comments made by bar members concerning the proposed rule, including that an indirect notice requirement, might improve the proposed rule. DIRECT NOTICE REQUIREMENT Gregory Harvey of Montgomery McCracken Walker & Rhoads said he thinks the justices will ultimately implement a rule that requires direct, written notice of lack of coverage. Harvey said he thinks there are four schools of opinion among Pennsylvania lawyers when it comes to proposed Rule 1.4 (c): Those that think nothing should be done. Many who express this belief are from non-urban areas and/or work in small or solo offices. Those that think there should be both a direct notice requirement and mandatory coverage. Those that think an indirect notice requirement goes far enough. Many leaders of the Pennsylvania Bar Association are in this category, Harvey said. Those that think a direct notice requirement alone is appropriate. The editorial board of The Legal Intelligencer, of which Harvey is a member, all fall into the final category. The editorial board also called on the Supreme Court to release the data it has collected on malpractice coverage rates within the profession.

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