HON. KENNETH B. HODGES III
President State Bar of Georgia firstname.lastname@example.org
Protecting the Authority to Self-Regulate
Unlike most professions, lawyers have the authority of self-regulation. In fact, the need to protect the public through a system of regulation and discipline within the legal profession was the main reason the Georgia General Assembly and the Supreme Court of Georgia established the unified State Bar of Georgia 55 years ago.
Hugh M. Dorsey, the first president of the State Bar of Georgia, said as much during his address at the 1964 Annual Meeting. “Certainly, the capstone of the State Bar is the power of self-discipline, which has been sought so long and is needed so badly,” Dorsey said. “For the first time all of us can, and will, be held to answer to the public for the conduct and character of our profession and here we must not, and cannot, fail.”
This is an important responsibility that if not handled properly could result in the power to self-regulate being removed, which is why, as president, I established a Professional Liability Insurance Committee to look into whether we should require attorneys to maintain legal malpractice insurance, or at least require disclosure to their clients and/or the public whether they have such coverage.
We all know that lawyers are open to being sued for malpractice when clients are dissatisfied with their representation. Legal professional liability insurance protects the lawyer from the mistakes that can occur while practicing law and compensates clients who can prove they were harmed by those mistakes.
A lawyer’s failure to carry malpractice insurance when there is a legitimate claim can result in inadequate compensation to the harmed client, financial ruin for the lawyer—or both. Going without such coverage is irresponsible and can itself be considered malpractice. When I was in private law practice, I could not have imagined doing so without liability insurance, and I always carried errors and omissions insurance. However, uninsured lawyers have become a relatively pervasive problem in Georgia, according to malpractice lawyers I have heard from. At a minimum, it seems to me that lawyers should be required to disclose to potential clients whether or not they’re carrying insurance.
The State Bar’s Executive Committee first discussed the idea of mandatory malpractice insurance for Georgia lawyers, or disclosure thereof, during a retreat last September. We decided to explore the concept and asked General Counsel Paula Frederick to provide information for discussion at the November meeting of the Board of Governors.
Paula reported that 23 jurisdictions currently require lawyers to disclose whether they have malpractice insurance. Most gather the information through a check-off on their annual dues or registration statement. The information is most often provided to the public for the benefit of potential clients; in fact, seven jurisdictions require the lawyer to disclose the information directly to the potential client. Many clients are not aware that lawyers in most states are not required to have insurance.
According to news reports, the State Bar of California is now debating whether to require all lawyers in that state to carry malpractice insurance coverage. Presently, only the Idaho and Oregon...