Alternative Dispute Resolution Issue - Contra Costa County Bar ...

More than you ever wanted to knowInsurance Disclosure Rule Approvedby Dick FrankelUnder a new Rule of Professional Conduct approved by the Supreme Court in August, lawyers who do not carrymalpractice insurance must tell their clients — under most circumstances — that they are not insured. Rule 3-410takes effect January 1, 2010. The five-part rule has these requirements:• Notification that a lawyer does not carry professional liability insurance must be made in writing at the timea client hires the lawyer, if it is “reasonably foreseeable” that the representation will exceed four hours.• If the insurance coverage later lapses, the attorney must tell the client within 30 days of the time he or sheis no longer insured.• Government lawyers and in-house counsel are exempt.• The rule does not apply to legal services given in an emergency to avoid prejudice to a client’s rights or interests.• The rule does not apply if the lawyer previously informed the same client that he or she is not insured.The rule was three years in the making and led to sharp division within the State Bar Board of Governors. The finalproposal was the fifth version of a rule that was first recommended in June of 2006.The American Bar Association adopted a model rule in 2004 concerning malpractice insurance disclosure;23 states have adopted some type of disclosure requirement.Chief Justice Ronald George appointed a task force that proposed a new rule of professional conduct requiringdisclosure to the client and a new rule of court requiring disclosure to the bar. The bar would, in turn, have identifiedthose without insurance on its website.The proposal sparked widespread opposition from solo and small firm lawyers, who complained they would bedisproportionately affected, as well as the Conference of Delegates of California Bar Associations and other localbars. Proponents — including bar committees on ethics, professional liability and mandatory fee arbitration — sawdisclosure as a public protection measure and a way to provide important information about attorneys to prospectiveclients. Opponents, however, viewed disclosure as an expensive requirement that could stigmatize attorneys whodo not carry malpractice insurance, could reduce the availability of legal services to low- and middle-income clientsand could serve as an incentive for disgruntled clients to sue for a quick cash settlement.Although California required a form of malpractice disclosure that began in 1992, a sunset clause was added tothe legislation the following year and the statute was repealed by its own terms in 2000.An estimated 30,000 California lawyers — about 20 percent of active practitioners — currently do not carryprofessional liability insurance. In general, malpractice policies cost between $4,000 and $7,000 annually.The State Bar conducted an online survey during the summer on the availability and affordability of malpracticeinsurance and is analyzing the more-than 1,600 responses.Complete text of the rule is at the bar’s website, calbar.ca.gov. Go to Attorney Resources>Rules>Rules ofProfessional Conduct>Current Rules. u“Complete ADR Services”ADR PROFESSIONALSJUDGE MICHAEL J. BERGERJUDGE RICHARD H. BREINERHON JEANNE MARTIN BUCKLEYJUDGE VICTOR CAMPILONGOJUDGE JOHN J. GALLAGHERJUDGE ISABELLA H. GRANTJUDGE RONALD GREENBERGJUDGE INA LEVIN GYEMANTJUDGE HADDEN ROTHJUDGE VERNON F. SMITHPATRICK M. BRODERICKCLAYTON E. CLEMENTW. GREGORY ENGELHOWARD M. GARFIELDPERRY D. LITCHFIELDGARY T. RAGGHIANTIPAMELA M. SAYADMICHAEL D. SENNEFFERIC STERNBERGERMATTHEW N. WHITERICHARD S. WHITMOREW. BRUCE WOLDLook for us on the Webwww.resolutionremedies.comRobert E. AuneMediation and Arbitrationof Real Estate MattersConstruction Defects • Lease DisputesHomeowner Association DisputesCommercial Finance • Land UseInsurance Coverage505 Sansome Street, 6th Floor • San Francisco 94111415.433-6400 • raune@auneassociates.comFamous ResRem LunchesDiane Levinson-Fass, PresidentDiane Story, Vice PresidentTel: (800) 778-2823Copy CCCBA-RR REV(2009).docContra Costa Lawyer 9