Dear mz1,
In most states the answer to your question is that it is at best
difficult, and sometimes impossible, to find out whether a specific
attorney carries malpractice insurance, unless the attorney
cooperates, or unless you obtain that information during the course of
litigation against the attorney.
Most lawyers will provide proof of insurance to a new client if they
believe it is necessary to get the client's business. However, as very
few clients ask about insurance, that information may not be readily
available (the policy may be filed away in a safe place, and not be at
a lawyer's fingertips during the course of a consultation).
1. Malpractice Insurance is Generally Not Required
In the U.S., there is generally not a requirement that lawyers carry
malpractice insurance. This means that in most states, 40 - 50% of
lawyers don't carry insurance (also called "going bare"). There are
public policy reasons not to require malpractice insurance. For
example, some lawyers do very little direct legal practice, and
requiring insurance would remove the profit from that work. A
semi-retired lawyer, or a lawyer who has a "day job" but performs a
few cases on the side, for example, might choose not to practice if
they had to purchase malpractice insurance.
As a result of this issue, various states have proposed various means
to let the public know whether or not a lawyer is insured. Missouri is
presently considering requiring lawyers to indicate in their
advertising and on their letterhead whether or not they are insured.
The following article, by the President of Pima County, Arizona's Bar
Association, makes note of the problem, and observes that even where
created, insurance notification requirements have often lapsed, and
discusses possible solutions:
http://www.pimacountybar.org/thewrit.htm
The following article, authored by legal malpractice attorney Warren
R. Trazenfeld, details the state of affairs in Florida, where legal
malpractice insurance is not required, and approximately 40% of
lawyers are uninsured:
http://www.floridalegalmalpractice.com/warren_trazenfeld/article.html
2. It May Be Possible To Figure Out If A Lawyer Is Insured
There are ways to infer whether an attorney has malpractice insurance,
but it can be difficult to confirm insurance without the attorney's
cooperation. For example, most state or county bar association lawyer
referral programs require their member attorneys to be insured. (The
difficulty is, sometimes they don't verify the lawyer's claim that he
has insurance, and sometimes they don't verify insurance coverage
after the first year.)
Also, if a lawyer is on a County's "appointments" list, for taking
assignments to act as a criminal defense lawyer for an indigent
defendant, some counties require lawyers on those lists to be insured.
Those lists, with the insurance information, are probably available by
filing a request under the state's "Freedom of Information Act"
(FOIA). The specifics of each state's FOIA vary. By way of example,
the following link to the U.S. Department of Justice provides
information on how to make a FOIA claim under the Federal Act. (A
request to a state agency would be made under the state's own FOIA
statute.)
http://www.usdoj.gov/04foia/04_1.html
3. There May Be Protections for the Client of an Uninsured Attorney
Some (but not all) states have special programs to provide for some
level of reimbursement to people who suffer the effects of certain
types of legal malpractice, but find that their lawyer was uninsured.
For example, Hawaii offers a fund to reimburse clients who have
suffered a loss of money, property, or other items of value as a
result the dishonesty of a Hawaiian lawyer.
http://www.consumerlaw.com/Consumerlaw.com/lawfund.html
Michigan offers a narrower "legal protection fund" to help compensate
people whose lawyers misappropriate funds entrusted to them:
http://www.michbar.org/client/content.html
4. It Is Better to Assume Coverage Than To Risk Losing Your Claim
If you have a valid claim against a lawyer, keep the following in
mind. The typical legal insurance policy is a "claims made" policy.
That means, for their to be coverage, the policy must be in effect
when the malpractice occurs *and* when the claim is made. If the
policy lapses for any reason, unless the lawyer purchases "tail"
insurance (to cover acts prior to when the policy comes into effect),
there will not be any insurance coverage. Similarly, even if the
attorney was insured at the time of the malpractice, if the policy
lapses before a claim is made there will not be any coverage.
If you are looking for information about whether a specific state
requires legal malpractice insurance, please indicate the state by
means of a request for clarification.
Suggested Search Strategy:
Although my knowledge in this area comes primarily from personal
experience, the following searches revealed most of the articles
linked above:
Google search: "states require legal malpractice insurance"
://www.google.com/search?q=states+require+legal+malpractice+insurance
Google search: "bar legal malpractice fund"
://www.google.com/search?q=bar+legal+malpractice+fund
I hope you find this helpful,
- expertlaw |
