Regarding the mandatory procurement of malpractice insurance for all attorneys throughout Georgia, if implemented without much further thought and planning, and real input not just from attorneys who will make money from malpractice litigation, but attorneys all over Georgia with various noninsurance related practices, this move will be ruinous, not only for the majority of attorneys throughout the state but its citizens as well.
First, as an attorney who has taken a large share of appointed cases for our circuit defender in Cobb County as part of his caseload, my practice does not have impressive yearly revenues. Still, I manage to provide what the large majority of my clients would tell you has been excellent service while I run my office on a shoestring budget. Requiring me to have malpractice insurance will mean I take far fewer, and quite possibly no, circuit defender cases. After speaking with other attorneys, I know I am not the only one in this position.
Second, in all practice areas, but especially for criminal defense lawyers, some disgruntled clients who have no claim at all or who have suffered no damages, will be encouraged to sue their attorneys hoping to score a recovery from the insurance policies. I often represent good people in bad situations. But I have also had to represent a client here and there who, having no compunctions about committing outright theft, will just as easily file a bogus insurance claim. Thus, good and competent attorneys will have to deal with the stress of such unsubstantiated claims and possibly see their rates increase because of it.
Third, once a captive market is established, the prices of insurance will follow the pattern we have seen in health care. I certainly want a solution to our national health care crisis. But right now, my health care insurance has more than tripled in just a couple of years. So, while mandatory malpractice insurance will be a great boon for the insurance providers, as well as the attorneys who are involved in this field, it will come at a great cost to many of their fellow lawyers. But, to my knowledge, the leadership of the state bar is not looking to use the power of our collective numbers to find a plan that is affordable to all. Rather, it seems we are to be left on our own to find a plan—if one exists—that doesn’t drive up our overhead too much.
Fourth, there are many lawyers who are not looking to practice full-time. For instance, there is the lawyer who is close to retiring but takes a case here and there, and the mom who wants to raise her children while overseeing a small practice, who may want or already have malpractice insurance but will be forced to not practice law, should their insurance rates go through the roof. And, the newly minted lawyer or lawyer with a few years under their belt will be deterred from hanging out their own shingle, instead being forced into or to remain at larger firms where they may not be suitable or happy.
This is a solution looking for a problem. And a problem we will have when, should this idea become reality, lawyers leave the trenches of helping all citizens. Instead, lawyers who wish to remain in practice will move to working only for those best situated to help them meet the ever-increasing cost of overhead. The cost of legal services across the state will necessarily rise as costs are passed through from insurance company to lawyer to client. And, especially for Georgia’s needy and the lawyers who serve them, this will be a lose-lose scenario.
When the Board of Governors of the State Bar of Georgia meets this June 6–9 in Orlando, Florida, should the vote be held and should it pass, mandatory malpractice insurance will be a game-changer for most, if not all, attorneys in the state, how law is practiced and who is served. If you are persuaded by the above argument, I encourage you to make your position known to your Board of Governors representatives as well as the rest of the bar leadership. Only if they hear your voice will they be persuaded to go back to the drawing board and rethink what they are considering doing.
Alan Levine practices law in Marietta, focusing primarily on DUI and criminal defense.