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VSB sinks mandatory insurance

STAUNTON—After wrestling with the issue of mandatory legal malpractice insurance for more than two years, the Virginia State Bar Council rejected the concept by a 60-11 vote.

The vote at the council meeting on Oct. 17 at the Stonewall Jackson Hotel in Staunton was almost anticlimactic, with only three council members speaking against it after R. Paul Childress Jr., chairman of the Committee on Lawyer Malpractice Insurance, outlined the pros and cons of the proposal.

David W. Bouchard of Chesapeake then moved to reject the proposal and called the question, a parliamentary move that would have ended debate.

Joseph A. Condo of McLean asked him to withdraw the motion until he could speak in favor of the proposal although he acknowledged, “I think I know where this is going.”

Bouchard agreed, but “only because [Condo’s] mustache is whiter than mine.”

Legal malpractice insurance “not only protects the public, it protects the lawyer, too,” Condo said. “I think it’s a huge mistake to vote this down. I think it’s going to give us a huge black eye with the public.”

But the majority appeared to agree with Childress’ observation that many lawyers saw the proposal as “a cure for a non-existent problem,” especially when almost 92 percent of attorneys who represent clients drawn from the public already have legal malpractice insurance.

Moreover, the proposal would discourage retired attorneys from engaging in pro bono work and make insurance companies the final arbiter on whether an attorney would be licensed to practice in the state, Childress said. Only one state, Oregon, requires lawyers to have malpractice insurance.

The proposal was a decidedly minimalist approach that reflected the ambivalence of the subcommittee, headed by Richmond attorney Darrel Tillar Mason, on the concept. It went to council without a recommendation from the subcommittee, and the VSB executive committee voted against it unanimously the day before the council vote.

Under the proposal, an attorney would have had to purchase a policy on the open market with a minimum coverage of $100,000 per claim and a claim expense allowance of at least $50,000 outside the policy limits.

“While higher levels of per claim coverage would be desirable in most instances, as would an aggregate limit reflecting some multiplier of the per claim limit, the committee’s focus was on making the transition from uninsured to insured as economical as possible,” Mason said in her report to council.

Online membership directory

In a major policy change, council voted unanimously to include all attorneys in the bar’s online membership directory unless they ask to be excluded. Now, only those attorneys who ask to be included are listed in the directory, and only 15 percent of members have done so.

When the issue was last before council two years ago, the VSB’s publications/public information committee recommended the opt-in directory because of the address of record for a substantial number of attorneys is their home. Attorneys involved in law enforcement or national security were especially concerned that the information would become public.

Information available in the directory would include name, firm name, mailing address, phone number, class of bar membership and whether not the member is in good standing. It would not include an e-mail address. Bar organizations in 29 states have similarly comprehensive directories, according to a survey by Donna Bausch, executive director of the Norfolk and Portsmouth Bar Association and librarian for the Norfolk Law Library.

Karen A. Gould, VSB executive director, said attorneys will get a letter advising them of the change in addition to notification in the monthly E-News electronic mailing and notices in the Virginia Register and Virginia Lawyer. She said the directory probably would not be available before the first of next year.

On another matter, council voted to increase the administrative fees assessed against lawyers who are disciplined by the bar.

For district subcommittee proceedings, the fee would be raised from $500 to $750. It would go from $750 to $1,000 for proceedings before a three-judge panel. In cases in which an attorney seeks reinstatement after suspension or revocation of his or her license, the fee would be $1,500.

Disciplined attorneys also are responsible for reasonable costs paid by the VSB for experts, travel and out-of-pocket expenses for witnesses, transcripts, copying and mailing.

VSB Counsel Edward L. Davis said bar dues will continue to pay most of the cost of the disciplinary system, but the increase in the administrative fee will shift some of the burden to those lawyers whose conduct creates the need for the system.

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