Adjective Americans

The fundamental problem with the California bar’s recent decision not to disclose race data lies in its possession of that data in the first place. In their quest to engineer fairness and harmony, government bureaucracies, the bar included, accomplish just the opposite.

Asking for racial and national heritage data merely perpetuates divisiveness within America. Government racial and social data collection perpetuates the conversion of America from what was meant to be a nation of one assimilated people into a conglomeration of adjective Americans.

Stephen Davis
White Plains, N.Y.

A hapless project

The State Bar has revised once more its proposal to require lawyers to tell clients if they don’t carry malpractice insurance. The new effort — its fifth version and third released for public comment — would limit the disclosure requirement to cases where it’s “reasonably foreseeable” that a lawyer will represent a client for more than four hours. This latest incarnation of the bar’s hapless project not only does little to cure the underlying problems, but adds new difficulties.

First, four hours isn’t a reasoned figure, and it isn’t much. This threshold might lift the disclosure requirement for legal advice given at a cocktail party or in a single phone call, but it seems unlikely to protect the great majority of representations. Basic objections to the bar’s proposal therefore would remain, centering on its splitting the legal profession between big firm lawyers who can afford malpractice insurance and solos and small firm lawyers who cannot.

Meanwhile, the proposed rule abounds with ambiguity. As the Bar Journal reported, bar staff are “concerned” about the new version “because they said the four-hour requirement is arbitrary and its ‘reasonably foreseeable’ qualifier is ambiguous.” Indeed, what does “reasonably foreseeable” mean? Is the test objective or subjective?

Further, the disclosure requirement would apply with respect to “new clients and new engagements with returning clients” — opening a rich lode of questions about who’s a “client” after a merger or acquisition, for example. And there’s an exception for legal services “rendered in an emergency to avoid foreseeable prejudice” to the client. What’s an “emergency” in this context?

In general, the bar’s proposed rule would fuel client-lawyer litigation, not only providing a fresh ground for suits by unhappy clients against their erstwhile attorneys, but supplying a wealth of uncertainties, ambiguities and possible legal arguments on which those suits can feed. The clients might well get settlements, payable from the lawyer’s own assets.

The bar should drop its benighted idea — at least until it makes low-cost malpractice insurance available to California’s lawyers.

Stephen R. Barnett
Berkeley

Ask away

The answer to Thomas M. Holliday’s question, “If it matters to potential clients, why can’t they ask if the attorney has malpractice insurance?” (January letters) is: Because we have legislated away caveat emptor. No longer must the poor, naïve, ignorant consumer ask the seller or provider all of those technical questions. Time was, if it mattered to a potential buyer, she had to ask if the roof leaked. Nowhere is this reversed burden more critical than in securities exchange. Really, why not require the buyer (or seller) to ask the “insider” if he has any secret information?

Attorneys have foisted this nannyistic state mentality on others, and now I see at least one of your readers laments that the principle oppresses attorneys as well. What’s the saying about sauce and the gander?

Kurtiss Jacobs
Concord