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Solos have no say

I have been a solo practitioner for over 20 years handling applicant workers’ compensation cases. Our president’s claim (March) that the State Bar is not prejudiced against solo attorneys simply is not true.

The cost of keeping a modest practice open has been spiraling upward for the last 10 years. In regard to malpractice insurance, every year it has become more and more difficult to find affordable coverage. None of the admitted carriers has a policy that covers a small practice and we are expected to pay the same premium per attorney as large firms, even though our exposure is only a fraction of larger firms.

The insurance carriers have no duty of disclosure as to how they justify premiums, which fluctuate wildly and again, the carriers are free to make up their premiums, subject to whether there happens to be a rate war going on when your renewal comes due.

Add to this the reality that big business has eviscerated workers’ comp rights and slashed attorney fees in their “reforms” and you have a formula for the demise of the solo practitioner.

I don’t know who would be crazy enough to go without malpractice insurance no matter how remote the risk and expose yourself to financial ruin. Malpractice insurance is mandatory and as long as the insurance industry has total control of the business, don’t pretend that us solo practitioners have any say on the subject.

This whole disclosure to clients issue has nothing to do with client protection and everything to do with making malpractice insurance transparent, fair and affordable.

Mark O’Connell
Irvine

Camel in the tent

I have a simple answer for Mr. Bleich: Get the bar off our backs.

If clients care about (insurance disclosure), they can negotiate it for themselves. Lots of lawyers would simply reply that it is none of the client’s business.

Where will it end? Do you have to disclose that you have malpractice insurance, but it is inadequate to cover the possible losses? That if my carrier goes under, my personal assets won’t be sufficient to pay your claim? That I’m with a carrier that has a long history of denying claims?

The argument is, this won’t hurt, it is minimal. But once instituted, the camel’s nose is under the tent wall it is only a matter of time before the whole camel gets in.

Whether a lawyer chooses to endure the burden of paying for insurance coverage is a matter of personal choice. Some have adequate personal reserves and choose to rely on their own skill. Some can’t afford it. Some don’t care to. It is quite simply none of the bar’s business.

If those for whom the bar is the recreation of choice need something to do, let them look to the malpractice system itself. The statute of limitations is too long and has too many exceptions; the standards are too difficult to meet; the rules are impossible; the protection against false or unmeritorious claims is non-existent. How about the bar does something about those problems, so that lawyers don’t have to commonly acknowledge the terror of the groundless or not-very-well-grounded malpractice lawsuit? How about a cap on liability (like the doctors)? Or a system of required pre-lawsuit mediation?

The bar ought to do something to protect the lawyers from a system that has grown onerous and frightening indeed; that would be much more just than applying this silly and intrusive disclosure requirement.

John Marshall Collins
San Jose

Bowing to big firms, again

“Most of us expect that if we go to a doctor they have insurance in the event they make a mistake and injure us.” (President’s column, March)

Now I understand the logic of the State Bar’s new appreciation of the concerns of small firms and solos. Doctors don’t have to disclose if they don’t carry malpractice insurance.  They don’t have to disclose MICRA limitations. No other professional in the state, to my knowledge, is under a duty of disclosure of professional insurance at time of retention. My dentist certainly doesn’t tell me his insurance status, nor my architect. Big law firms don’t have to disclose their level of deductible or self-retention.

Please don’t pretend that this is about understanding or caring for solos and small firms. It isn’t and is yet another example of the State Bar alignment with big firms and a lack of sensitivity to the rest of us. That’s how it’s been for years and nothing seems to have changed.

Peter Goldenring
Ventura

Disclosure won’t help

For a number of years, I, too, have felt that the needs of solos and small firms have been completely ignored by the bar association via increasing regulation and administrative requirements. Larger firms have, in addition to the ability to administrate their practices with a minimal use of attorney time, the advantage of being able to spread out the costs of doing business over a much larger client base, whereas for solo and small firms one large cost (for example, a client whose case suddenly demands a large amount of time and does not pay those fees) can have a devastating effect on the entire practice.

While my firm does continue to maintain malpractice insurance, even though the cost of that insurance has, for the past several years, been more than the rent for our office space, I agree that a requirement for all attorneys to maintain that insurance would simply make legal services even more inaccessible to the general public.

Unfortunately, however, I do not believe a disclosure requirement would necessarily solve the issue, as many people, even given ample time, simply fail to actually read the entirety of their fee agreements, and are “surprised” when they are expected to comply with the terms of that agreement.

Laurie Schiff
Newport Beach

One more burden

In an admittedly unscientific poll, I asked half a dozen friends if they expect their attorneys to carry malpractice insurance. Despite Mr. Bleich’s assertion to the contrary, they did not; the typical response is that the thought never entered their minds.

However, when I asked whether they would lose confidence in an attorney who said up front that he or she did not carry malpractice insurance, without exception they said they would think twice about hiring such an attorney. The typical response included words to the effect of wondering why this attorney is coming out in the initial consultation and mentioning malpractice at all if he or she is any good.

The malpractice disclosure rule is just one more burden on those of us in small practice who pay our own bar fees and provide low-cost legal services.

Steven Kaftal
San Diego

A terrifying prospect

It is with some concern that I watch the “progress” of neuroscience in the law (March). The concern is based on the fact that few people seem to realize that science is only a means to an end, not an end in and of itself. In the hands of a saint, science is a wonderful tool; however, in the hands of a demon, science is a terrifying weapon.

Even if, in the future, science will be able to “read our minds,” we will still be in the same place we are today with all science, i.e., required to do the hard thinking necessary to determine the credibility of the methodology, findings and significance of the scientific evidence.

Due process cannot be outsourced to a machine; not now, not ever.

Ken White
Ontario

Solos have no say

I have been a solo practitioner for over 20 years handling applicant workers’ compensation cases. Our president’s claim (March) that the State Bar is not prejudiced against solo attorneys simply is not true.

The cost of keeping a modest practice open has been spiraling upward for the last 10 years. In regard to malpractice insurance, every year it has become more and more difficult to find affordable coverage. None of the admitted carriers has a policy that covers a small practice and we are expected to pay the same premium per attorney as large firms, even though our exposure is only a fraction of larger firms.

The insurance carriers have no duty of disclosure as to how they justify premiums, which fluctuate wildly and again, the carriers are free to make up their premiums, subject to whether there happens to be a rate war going on when your renewal comes due.

Add to this the reality that big business has eviscerated workers’ comp rights and slashed attorney fees in their “reforms” and you have a formula for the demise of the solo practitioner.

I don’t know who would be crazy enough to go without malpractice insurance no matter how remote the risk and expose yourself to financial ruin. Malpractice insurance is mandatory and as long as the insurance industry has total control of the business, don’t pretend that us solo practitioners have any say on the subject.

This whole disclosure to clients issue has nothing to do with client protection and everything to do with making malpractice insurance transparent, fair and affordable.

Mark O’Connell
Irvine

Camel in the tent

I have a simple answer for Mr. Bleich: Get the bar off our backs.

If clients care about (insurance disclosure), they can negotiate it for themselves. Lots of lawyers would simply reply that it is none of the client’s business.

Where will it end? Do you have to disclose that you have malpractice insurance, but it is inadequate to cover the possible losses? That if my carrier goes under, my personal assets won’t be sufficient to pay your claim? That I’m with a carrier that has a long history of denying claims?

The argument is, this won’t hurt, it is minimal. But once instituted, the camel’s nose is under the tent wall it is only a matter of time before the whole camel gets in.

Whether a lawyer chooses to endure the burden of paying for insurance coverage is a matter of personal choice. Some have adequate personal reserves and choose to rely on their own skill. Some can’t afford it. Some don’t care to. It is quite simply none of the bar’s business.

If those for whom the bar is the recreation of choice need something to do, let them look to the malpractice system itself. The statute of limitations is too long and has too many exceptions; the standards are too difficult to meet; the rules are impossible; the protection against false or unmeritorious claims is non-existent. How about the bar does something about those problems, so that lawyers don’t have to commonly acknowledge the terror of the groundless or not-very-well-grounded malpractice lawsuit? How about a cap on liability (like the doctors)? Or a system of required pre-lawsuit mediation?

The bar ought to do something to protect the lawyers from a system that has grown onerous and frightening indeed; that would be much more just than applying this silly and intrusive disclosure requirement.

John Marshall Collins
San Jose

Bowing to big firms, again

“Most of us expect that if we go to a doctor they have insurance in the event they make a mistake and injure us.” (President’s column, March)

Now I understand the logic of the State Bar’s new appreciation of the concerns of small firms and solos. Doctors don’t have to disclose if they don’t carry malpractice insurance.  They don’t have to disclose MICRA limitations. No other professional in the state, to my knowledge, is under a duty of disclosure of professional insurance at time of retention. My dentist certainly doesn’t tell me his insurance status, nor my architect. Big law firms don’t have to disclose their level of deductible or self-retention.

Please don’t pretend that this is about understanding or caring for solos and small firms. It isn’t and is yet another example of the State Bar alignment with big firms and a lack of sensitivity to the rest of us. That’s how it’s been for years and nothing seems to have changed.

Peter Goldenring
Ventura

Disclosure won’t help

For a number of years, I, too, have felt that the needs of solos and small firms have been completely ignored by the bar association via increasing regulation and administrative requirements. Larger firms have, in addition to the ability to administrate their practices with a minimal use of attorney time, the advantage of being able to spread out the costs of doing business over a much larger client base, whereas for solo and small firms one large cost (for example, a client whose case suddenly demands a large amount of time and does not pay those fees) can have a devastating effect on the entire practice.

While my firm does continue to maintain malpractice insurance, even though the cost of that insurance has, for the past several years, been more than the rent for our office space, I agree that a requirement for all attorneys to maintain that insurance would simply make legal services even more inaccessible to the general public.

Unfortunately, however, I do not believe a disclosure requirement would necessarily solve the issue, as many people, even given ample time, simply fail to actually read the entirety of their fee agreements, and are “surprised” when they are expected to comply with the terms of that agreement.

Laurie Schiff
Newport Beach

One more burden

In an admittedly unscientific poll, I asked half a dozen friends if they expect their attorneys to carry malpractice insurance. Despite Mr. Bleich’s assertion to the contrary, they did not; the typical response is that the thought never entered their minds.

However, when I asked whether they would lose confidence in an attorney who said up front that he or she did not carry malpractice insurance, without exception they said they would think twice about hiring such an attorney. The typical response included words to the effect of wondering why this attorney is coming out in the initial consultation and mentioning malpractice at all if he or she is any good.

The malpractice disclosure rule is just one more burden on those of us in small practice who pay our own bar fees and provide low-cost legal services.

Steven Kaftal
San Diego

A terrifying prospect

It is with some concern that I watch the “progress” of neuroscience in the law (March). The concern is based on the fact that few people seem to realize that science is only a means to an end, not an end in and of itself. In the hands of a saint, science is a wonderful tool; however, in the hands of a demon, science is a terrifying weapon.

Even if, in the future, science will be able to “read our minds,” we will still be in the same place we are today with all science, i.e., required to do the hard thinking necessary to determine the credibility of the methodology, findings and significance of the scientific evidence.

Due process cannot be outsourced to a machine; not now, not ever.

Ken White
Ontario

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