Lawyers Going Bare and Clients Going Blind
53 Pages Posted: 20 Feb 2016 Last revised: 16 Mar 2019
Date Written: September 19, 2016
Many U.S. lawyers “go bare” and represent clients without maintaining malpractice insurance. Efforts to require these lawyers to carry lawyer professional liability (LPL) insurance have mostly foundered, due to bar opposition and concerns about the cost of insurance. As a compromise between protecting the public and protecting lawyers’ interests, many states now require lawyers to disclose whether they carry LPL insurance to clients, regulators, or both. This Article draws on survey data from Arizona, Connecticut and New Mexico lawyers that shed light on which lawyers go bare and the reasons why they do so. The Article then looks at states’ insurance disclosure requirements and assesses how well they achieve their primary purpose of public protection and their secondary aim of inducing uninsured lawyers to purchase LPL insurance. It also examines whether some of the bar’s arguments against disclosure requirements have proved meritorious. The Article then returns to the question, first considered forty years ago, of whether U.S. lawyers should be required to maintain LPL insurance. The evidence suggests that — like lawyers throughout much of the rest of the world — U.S. lawyers should be required to maintain LPL insurance. It explains why the current disclosure rules do not sufficiently alert clients to the risks posed by uninsured lawyers. The Article recommends measures to improve the current insurance disclosure rules, while recognizing the limitations of any disclosure scheme.
Keywords: Lawyers, Legal Profession, Insurance, Law & Society, Malpractice
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