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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