Should Lawyers Be Required to Carry Malpractice Insurance?

I just ran across an article in the ABA Journal that points out that only one state, Oregon, requires attorneys to be covered by malpractice insurance. There, lawyers must purchase at least $300,000 of coverage through a state fund.

Maryland Does Not Require Legal Malpractice Insurance

My state, Maryland, does not require it and never has. I know there are many, many lawyers “running bare.”

I think this is colossally stupid. If the economics of your practice do not allow for the purchase of malpractice insurance, you might be in the wrong game.  If you are a personal injury lawyer handling large cases, it is particularly insane.

legal malpractice insuranceIt is easy to think that because you are a dedicated, competent lawyer, you will avoid committing malpractice.

But what if someone brings a claim that turns out to be unfounded? If you have insurance, it is defended at low or no cost by an attorney who is an expert in legal malpractice defense. You will have access to well-qualified experts to testify in your defense. You will have counsel with experience in assisting you with any bar complaint that may be made. With no coverage, you don’t get any of that, and if you do, you pay as you go.

Whether or not the state requires lawyers to purchase malpractice insurance, it is a good idea to have it. I just can’t believe there are lawyers who go without. Why do I suspect that these are probably also the lawyers most likely to need it?

My feeling is that every lawyer in Maryland should be required to have legal malpractice insurance.  How can we expect the public to trust lawyers if there is no recourse for them when a mistake is made?

There should be mandatory malpractice insurance for a host of professionals — doctors, lawyers, accountants, architects, etc. — in my opinion.  People will never ask their lawyer if she has malpractice insurance.  It is not something you are dialed in on when you have just lost your husband and father of your three kids in an accident or by medical malpractice.  Nor should it be.

Who is following my wisdom?  The great state of Oregon. (2021 Update: Idaho is also on board.) That’s it, to my knowledge.  Again, the coverage is only $300,000.  That is not much.  Attorneys in Oregon send in money to the bar every year and it covers, among other things, legal malpractice insurance.

Middle Ground Proposal

If Maryland does not want to make legal malpractice mandatory, how about mandatory disclosure to clients?   This is the rule in Alaska and Vermont.  Our clients need to know that there is something to protect them if they get hurt twice, first in the unlying accident/malpractice, and then again by a lawyer’s mistake.

  • The ABA has a useful FAQ on legal malpractice insurance.