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St. Mary's Law Journal

Abstract

Traditionally, the legal profession prides itself on its ability to self-regulate and prefers to “take care of its own” in the disciplinary realm. The Model Court Rule on Insurance Disclosure (the Rule) invites an initial effort toward the legal profession’s self-regulating ideals and client protection. The Rule requires private practice attorneys to report to their state whether they plan to maintain liability insurance, which is then disclosed to the public. Unfortunately, the Rule’s ambiguous language and requirements create worrisome issues for both the attorney and client. Attorneys without malpractice insurance may be indirectly forced to obtain it. This expense could greatly affect the solo practitioner and may lead to concerns that the disclosure will encourage clients to sue. On the other hand, this enshrouds the client in a false sense of security who believes they are protected against any negligence by the attorney. As the legal profession evolves, so too should its ethical rules. The Rule lacks the capacity to completely protect either client or attorney. The challenge arises when striking a balance between protecting the client and protecting the attorney. Legal malpractice insurance issues elicit uneasiness from wary attorneys who could be financially or professionally harmed; but this must be balanced against a public need for trust and assurance from the legal profession. Considering attorney hesitation and public need, the Rule may not be the ideal long-term solution. But the Texas Bar should not wait for the legislature to act, nor should it rely on the American Bar Association (ABA) to dictate where the trend has already been leaning. Instead, the Bar should tailor its ideals to self-regulate in a way that protects clients, attorneys, and the profession itself.

Publisher

St. Mary's University School of Law

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