New Haven attorney Howard Lawrence was sued recently for legal malpractice. He lost the case, and the judgment against him exceeded $550,000. But Lawrence has neither insurance nor reachable assets sufficient to satisfy the plaintiff, rendering the litigation moot, in terms of recovery. He is judgment proof.
Should lawyers be permitted to practice without insurance?
There are calls for a new requirement that all lawyers carry malpractice insurance sufficient to cover potential claims. Those placing their trust in a lawyer, the argument goes, require assurances that should the trust be violated by negligence, or outright incompetence, that client’s financial interest is protected.
The proposed requirement has superficial appeal, but ought to be rejected.
It sounds noble to say that all lawyers must purchase malpractice insurance to assure that there are funds sufficient to pay their clients in the event a lawyer errs. After all, lawyers are in a position of trust. Lay people come to a lawyer with all sorts of needs.
Most folks aren’t in a position to assess whether their lawyer is competent or not. And even among the most competent, the possibility of a mistake lingers in every file. Why not require lawyers to maintain an insurance policy as a means of protecting the public?
Cautious lawyers should, of course, maintain malpractice insurance. We serve people undone by anger, grief and sorrow. In the zero-sum world of litigation there is a loser guaranteed in every case that goes to trial. A lawyer who thinks he can escape the wrath of a client who comes to him in anger is in for a surprise: The anger at a third party a client brings to your office will soon and easily enough be turned on you if you lose. Anger is the cheapest and most addictive drug on the market.
But should we really require lawyers to carry malpractice? I’m generally not a fan of mandates requiring me to buy a product from a corporation looking to make a buck off my talents. What’s more, why should I be required to purchase insurance so as to make me a more attractive target for folks to take a free shot at? If I am going to be required to paint a bullseye on my back then I think a parallel rule should be created: Sue me and lose, and I can recover my costs from the loser.
I’m no fan of the American rule. Forbidding parties from recovering costs from those who bring meritless suits is foolish. Litigation isn’t supposed to be a lottery underwritten by insurers.
I sometimes think that there is a self-destructive impulse rampant among leaders of the bar. Because the public is distrustful of lawyers, we perceive a need to regulate ourselves to address every suspicion.
We’ve adopted informed consent for strategy and tactics in legal ethics. We’re approaching a regulated market in terms of what fees are and are not regarded as reasonable. Comes now the proposal that we insure ourselves to protect our clients against the possibility we might err.
A better rule would be to permit lawyers to advise clients whether they have malpractice insurance. Treat the consumers of legal services like adults capable of making intelligent decisions about the risks they are willing to bear. If a lawyer decides to "go naked," and practice without insurance, he or she may have fewer clients. That’s a risk both lawyer and insurer should be free to bear.
I sleep better being insured. Nothing stops a pro se from slinging a writ at me any time they like. But some lawyers choose otherwise. I fail to see why they should be required to provide underwrite deep pockets for others to pick.•