Commentary
followed by response
09/16/00
Many lawyers go without malpractice insurance
A former Venice attorney could be a poster child for legal malpractice insurance, according to a local counselor who sued him and won a $402,000 judgment July 13, 2000.
"If somebody said why should you have malpractice insurance, my answer would be Russ Meade," Venice attorney James D. Park said, "or Pauline Orr."
Meade has since retired and moved out of state, according to a woman who answered the phone at his former office. He could not be reached for comment.
Orr went to Meade after her husband of 40 years filed for divorce.
"They had four assets, a house, a car, a little money in the bank and his government civil service pension," Park said. "Meade took care of the first three, but he did not do anything to guarantee that she would get her husband's pension benefits."
Orr then went from being Meade's client to plaintiff in the case against him.
"He did not protect her rights," Park said. "Meade took on a case and he missed the issue. The first thing you have to do when somebody comes into your office is figure out what their problem is, and he missed it."
Meade did not have professional liability, or malpractice insurance, Park said.
He did not have to.
Not mandatory
"Black's Law Dictionary" defines malpractice as: professional misconduct or unreasonable
lack of skill.
In 49 states including Florida, legal malpractice insurance is not mandatory. However, some lenders and title companies will not work with a real estate attorney who does not have malpractice insurance, a local counselor said.
Debbie Back, supervising underwriter for Mynatt Insurance Services in Tampa, said she doesn't think legal malpractice insurance needs to be mandatory, and she sells it.
"If an attorney feels he can handle expenses out of pocket," Back said, "he should be allowed to do that."
Florida Bar official Kathy Kilpatrick said the organization currently has 49,506 members in good standing in Florida (11,225 out of state) but the Bar does not keep records of who does and who does not have malpractice insurance.
The best educated guess from one top executive at Florida Lawyers Mutual Insurance Company is that about 65 percent of lawyers who practice in Florida have malpractice insurance. The rest, "go in bare," the executive said.
According to the Florida Department of Insurance, one in 19 lawyers will be faced with a legal malpractice claim.
Park said malpractice insurance could have made a difference in the Meade case.
"He would at least have been able to have a competent attorney," Park said. "He represented himself and didn't even show up for the trial. He was tried in absentia"
Malpractice insurance affords a client some recourse and makes possible the recovery of monetary damages.
Mandatory in Oregon
Oregon is the only state in which legal malpractice insurance is mandatory, according to Jeff Crawford, director of Administrator for the Oregon State Bar Professional Liability Fund.
Malpractice insurance has been mandatory in Oregon since 1977.
"It protects the people, and the lawyers here are overwhelmingly happy with the fund," Crawford said. "Surveys show our satisfaction rate is nearly 100 percent."
Crawford said mandatory malpractice insurance has done two important things.
"One, the purpose was to cover all claims so there'd be no incentive not to report claims," Crawford said. "Lawyers aren't trying to cover up their mistakes.
"Secondly, the emphasis is now on malpractice prevention, and we have one of the foremost malpractice education programs in the country. Malpractice claims, the quantity and the severity, have stabilized."
Crawford said in Oregon malpractice insurance costs $1,800 per year for the mandatory $300,000 coverage. He said the fund sells additional insurance coverage for anything more than $300,000.
Legal Malpractice insurance premiums in Florida start at approximately $3,500 per year and escalate depending on the options, or amount and type of coverage required, according to Mynatt Insurance's Debbie Back.
She said malpractice insurance for criminal defense attorneys is about the same as for attorneys who practice civil law.
Park said he bought malpractice insurance even before he had his first client when he set up his practice in Venice 16 years ago.
"I feel I don't buy coverage for myself, I buy it for my clients." Park said. "In the event I were to make a mistake over the course of representing hundreds of people over decades, I
don't want my client to suffer financially."
Reader question:
Why should or shouldn't attorneys be required to have malpractice insurance? Send responds to Venice Gondolier, 200 E. Venice Ave., Venice, Fla. 34285, Attention: Tommy McIntyre or e-mail McIntyre at: tmintyre@sunletter.com.
By Tommy McIntyre
Staff Writer
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October 24, 2000
Mr. Tommy McIntyre
Venice Gondolier
200 E. Venice Avenue
Venice, Florida 34285
Dear Mr. McIntyre:
This is in response to your reader question on September 16, 2000, "why should or shouldn’t attorneys be required to have malpractice insurance," is academic. Of course, attorneys should be required to have malpractice insurance and the limits should be equitable with the type of law they practice and contingent upon other specific factors. With legal malpractice claims skyrocketing year after year, and law schools giving birth to more and more attorneys, the question should be "would you hire a lawyer who did not have malpractice insurance?" In this regard, I doubt that any person would want to be operated on by a surgeon who did not carry ample medical malpractice insurance. Why would an attorney be so different. In fact, it should be mandatory for an attorney to carry malpractice insurance for their negligence and/or harmful ethical misconduct could have devastating effects on so many lives.
If the ultimate goal of attorneys, the Bar, and the courts were client protection, then the "golden rule" would be to take all steps necessary to accomplish that goal, whereby making it mandatory for attorneys to maintain legal malpractice insurance in the event a client is damaged due to the attorneys negligence and/or harmful ethical misconduct which results in malpractice. I believe that if such were the case, the state Bar associations, particularly those who create their own insurance carriers, would dissolve themselves from the disciplinary process or divest themselves from the insurance business. Florida, in particular, enjoys an inherent and direct conflict of interest with regard to having control over the disciplinary process and having control over malpractice claims brought against attorneys insured by their own created carrier............the fox guarding the henhouse. Compound that conflict of interest by the fact that the insured members are the owners of the insurance company. Further compounding the conflict of interest is that the Executive Director of The Florida Bar sits on the Board of Directors of the Bar’s created malpractice insurance carrier, Florida Lawyers Mutual Insurance Company. Continuing on the conflict of interest and the monopoly that the Bar enjoys by virtue of this relationship, sanctions for harmful ethical misconduct could result in disbursements of malpractice claims thereby affecting the loss ratio of the insured/member/owner/lawyers own insurance company, Florida Lawyers Mutual Insurance Company. In other words, since The Florida Bar has made it mandatory for every attorney to be a member of The Florida Bar, it should also be mandatory that every member of The Florida Bar maintain malpractice insurance coverage for the protection of the public they supposedly serve.
To quote attorney, James D. Park from your article "I feel I don’t buy coverage for myself, I buy it for my clients." To sum it up "JUST SAY NO." Just say No to any consideration of hiring any attorney who does not carry legal malpractice insurance.
Very truly yours,
Meryl M. Lanson
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