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Posts Tagged ‘limited license legal technicians’

44 years after apparently being the first state to consider implementing a mandatory malpractice insurance program, the nannies at the Washington State Bar Association (WSBA) are at it again. In an article in the current NW Lawyer, the WSBA governors “recently took up the question of whether requiring malpractice insurance for lawyers as a condition of licensing is an appropriate mechanism to help fulfill the regulatory duty to protect the public.”

Invoking the latest governance-consultant babble, the board held “a generative discussion” on the topic at its May meeting. A decision whether to create a mandatory malpractice insurance task force is set for its September 28-29 meeting.

Ironically, it matters little that the same article mentioned that 85% of Washington private practice lawyers already carry malpractice insurance. Apparently, it’s time to round-up the 15%.

https://upload.wikimedia.org/wikipedia/commons/thumb/d/d4/The_Cr%C3%A8che.jpg/320px-The_Cr%C3%A8che.jpgBecause mandatory bar membership weaponizes governing boards to over-regulate and interfere with member personal choice and member financial interest, governors deem their latitudes unbounded. And when they claim guidance from the holy spirit of public protection, they feel empowered with the grace to do almost anything. Moreover, given the Washington Bar’s history, there’s hardly a doubt the WSBA will again ‘make friends’ among its restive members. It will march down the same liberty and property infringing road as its Pacific Northwest predecessors Oregon and Idaho, the only jurisdictions in the U.S. that currently force their lawyers to buy malpractice insurance.

A Scarlet Letter

https://upload.wikimedia.org/wikipedia/commons/thumb/2/2e/The_Scarlet_Letter_%281917%29_1.jpg/302px-The_Scarlet_Letter_%281917%29_1.jpg“Forcing an attorney to have malpractice insurance to protect those who would use his services, or forcing him to disclose that he doesn’t have such coverage, will predominantly adversely impact new solo and small-firm lawyers, punishing them for a being new and financially tight. Instead of branding new uninsured attorneys with a Scarlet Letter, why not simply educate the consumer on the benefits of having a lawyer who is insured. If they are litigious, they’ll seek out the insured attorneys, I promise.

“As a profession, we already have certain protections in place to help the victims of malfeasance. Let the state Client Security Fund reimburse qualified victims. Let the Statewide Grievance Committee disbar irresponsible or criminal lawyers. Then let the criminal courts take it from there.” – Attorney Susan Cartier Liebel writing at Build a Solo Practice, LLC, “Mandatory Malpractice Insurance Only Hurts Law-Abiding Lawyers”

In 2008, the Virginia State Bar also considered mandating malpractice insurance. According to opponents in addition to the high cost on solos and small firms, “The most troubling aspect of the proposal is the concern that it would allow insurance companies to dictate who gets to practice law. While insurance might be available to lawyers with a poor claims history or a lawyer in a high-risk area of practice, the cost of that insurance might be prohibitive.

“A significant hardship would be imposed on a lawyer who is denied coverage because of a pending disciplinary complaint when ultimately the lawyer is exonerated of wrongdoing. If in the meantime his or her license to practice law is suspended because of an inability to obtain insurance coverage as a result of the pending complaint, the lawyer may suffer irreparable harm.” See “Mandatory Malpractice Insurance—It’s Time To Call The Question”

More recently, a well-heeled Nevada personal injury lawyer opined in an “Open Letter” that in addition to mandatory disclosure, Nevada’s Bar and Supreme Court need to create “a not-for-profit professional liability insurance provider for Nevada attorneys to provide competitive low-cost malpractice insurance for its members.” And if his proposal happens to exclude “some lawyers from practicing in Nevada because they may not be able to obtain malpractice insurance” — so be it.

“. . . if a lawyer’s record is so bad that they are unable to obtain malpractice insurance because the risk is too high for the insurer, is it not better that they are precluded from practicing law in Nevada than putting consumers at risk for their malpractice?” The Nevada Bar’s governing board is currently task forcing the matter. And if Oregon’s Professional Liability Fund is any barometer, don’t look for “competitive low-cost” coverage for Nevada lawyers. This year, Oregon lawyers were each assessed $3,500.00 for less bang-for-the-buck $300,000 per claim and $300,000 aggregate coverage.

Terms of Estrangement

As for Washington, it’s not like its Board of Governors hasn’t already sufficiently estranged itself from its members. In 2015, it inflicted unwelcome competitive pressures on underemployed lawyers by spearheading non-lawyer delivery of legal services by Limited License Legal Technicians. The technicians compete for lawyers’ income-generating work — without the toil and treasure invested by lawyers to obtain a Juris Doctor degree. “Who says you need a law degree to practice law?” So much for lip service paid to the unauthorized practice of law — not when you can pucker those lips around a convenient ‘access-to-justice’ exemption.

And more lately, the Board increased licensing fees from $325 in 2016 to $458. And to further pickle the wound, the Board punctuated the increase by obtaining court sanction to ignore a licensing fee referendum petition signed by 2,180 members that would have rejected the astounding 141% increase.

Evidently, member criticism doesn’t faze WSBA leadership. Despite repeated lawsuits and attempts to rein them in legislatively, the Washington Bar’s tin-eared imperiousness is seemingly boundless. Indeed, their arrogance may even exceed that of the State Bar of Arizona.

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Credits: snugglebunny, by parian, at Flickr Creative Commons attribution; The Crèche, by Albert Anker, Wikimedia Commons, public domain; The Scarlet Letter (1917), Wikimedia Commons, public domain; Sooooooooooooooooooooopa Tramp!!!!!!!!!!!!!!!!, by AndYaDon’tStop, at Flickr Creative Commons attribution.

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photoMandatory state bars long ago lost their ability to surprise. Just when you think tin-eared insularity reaches its limits — wait two beats — there’s always more.

Last month, for example, in his President’s Message: Task Force to Tackle Unauthorized Practice of Law, the Nevada State Bar President after first announcing a new bar task force to study the U.S. Supreme Court’s 6-3 decision against state-sponsored protectionism in North Carolina Board of Dental Examiners v. Federal Trade Commission, then surprisingly segued into a clarion call for more ways “to protect the public interest” from the unauthorized practice of law. Methinks he reached the wrong conclusion.

As a matter of fact, the North Carolina Dental Board case runs counter to self-regulated active market participants fostering anti-competitive regulations and actions for their own — not the public’s benefit. Writing for the majority, Justice Anthony Kennedy explained “Active market participants cannot be allowed to regulate their own markets free from antitrust accountability. When a state empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest. If a state wants to rely on active market participants as regulators, it must provide active supervision.”

No wonder those who aren’t state bar presidents are reading the case as “a blow for consumers and economic freedom.” Others even opine it may “drill down into bar associations’ [anti-trust] immunity.”

But no worries apparently in Nevada. In fact, some mandatory bars are acting as though the ruling has no impact since mandatory bar governing boards are either under the “active supervision” of state supreme courts or because lawyer regulation comes under the state supreme court or because bars don’t define what constitutes the practice of law (UPL).

In Arizona, where what constitutes the practice of law has been progressively diluted first, by court-certified legal document preparers exempted from UPL by supreme court rule and soon by the rumored introduction of Washington State-styled Limited License Legal Technicians, I predict the besainted Arizona Bar will declare itself anti-competitively pure.

But at least one mandatory state bar association has decided to pay half attention to what happened to North Carolina’s dentists. The State Bar of Washington announced last week it was suspending some ethics opinions because of antitrust concerns.

Bright line test.

Outside the insular world of bar associations, public interest and consumer groups are also weighing in. In a letter to California’s Attorney General earlier this year, consumer interest representatives asked for an inquiry of all state regulatory bodies in California.

Calling the North Carolina decision a “bright-line minimum test,” the public interest groups wrote, “Those controlling the decisions that might restrain trade may not be “active market participants” in the trade regulated. For every agency so afflicted, the legal status of those making such decisions is clear – they are, in the words of the Court, “nonsovereign actors” who lack any state sovereign immunity whatever. Their decisions are no different than a decision undertaken by a cartel or private combination of competitors. You are invited to review the decision en toto and draw your own conclusions, or to refer it and this letter to the leading antitrust prosecutors and experts in your jurisdiction.”

Concerning lawyers and state bar associations, in a footnote the correspondents declared, “By way of illustration: State bars controlled by attorneys rarely discipline for excessive billing or intellectual dishonesty. Few require any demonstration whatever of competence in the actual practice area of law relied upon by clients. Few require malpractice insurance, or in any way ameliorate the harm from attorney incompetence.

“The point is, each of the many agencies within your state is empowered to carve out momentous exceptions from federal antitrust law, and those decisions in particular require a level of independence from the implicit focus of current practitioners.”

The woes of the amici.

Before the decision, some mandatory state bars had signed onto the North Carolina Bar’s amicus brief asking the Supreme Court to overturn the Fourth Circuit. They’d claimed that upholding the Fourth Circuit would interfere with the state sovereign’s ability to regulate state-licensed professionals and state public protection laws. See “SCOTUS’ Upcoming Decision Could Leave State Bar Associations Toothless.”

They cited 4 likely gloom and doom impairments:

“(1) The limited resources available to prosecute lawyer misconduct and to prevent the unauthorized practice of law will be diverted to litigating whether the state bar’s action has been actively supervised in a manner sufficient to provide state action immunity.
(2) State bars will have to defend expensive antitrust actions even though states explicitly authorize the state bars to regulate the conduct being challenged.
(3) Lawyers will be reluctant to serve as bar councilors for fear of being sued—and of being held individually liable—in treble damage antitrust actions.
(4) Councilors who do agree to serve may be deterred from fulfilling their state authorized enforcement duties against defendants who threaten antitrust claims.”

Ironically, given the subsequent underwhelmed attitudes of some state bars in the case’s aftermath, the woes of the amici may have been overwrought pretense or much ado about nada. Perhaps the Justices were right to pay no mind.

Such little reaction despite all those supposed impairments. It appears the sky was never going to fall.

Or I’m wrong after all. No clue may be better than half-a-clue.

 

 

 

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Photo Credits: “No Tolerance” by Jimmy Changa, Icky Pic, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; Other photos via Morguefile.com, no attribution required.

 

 

 

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Christmas nears. Visions of sugar plums and tamales dance in some heads, including mine. So imagine my dismay on news that U.S. Customs and Border Protection (CBP) had interdicted 450 carefully wrapped tamales at the Los Angeles International Airport on November 2nd. ¡Ay, caramba!

Deemed “illegal” contraband, the corn husked pork and corn meal comestibles were seized from a Mexican traveler’s luggage. Once destined for holiday feasting, the tamales were instead impounded, the traveler fined, and the tamale treats consigned for ceremonial destruction under CBP supervision. Sometimes you can’t have your tamale and eat it, too.

tamales meal #6 | by Tricia Wang 王圣捷

Tamales and mandatory bars.

This tamale-for-cake variation of the age-old idiom brings me to the other reason for this post. Whether tamales, cakes or even mandatory state bar associations, you can’t always have your cake and eat it, too. In other words, you can’t or shouldn’t try to have two incompatible things like mandatory bar associations who claim to be both public protection regulators and trade associations for lawyer interests. By doing so, they fail to heed the ancient proverb, “No man can serve two masters.”

By mere happenstance, just the other day I posted here about past lawyer dissension in Washington State. In 2012 by referendum, Bar members overcame opposition from their Bar to roll back dues by 25%.

It appears that Washington lawyer brethren and sistern are again restless with their state bar. It’s the long-running kerfuffle between Washington Bar leadership and its Practice of Law Board (POLB). The dispute is over access-to-justice and regulating the unauthorized practice of law (UPL), which are supposed to be the core missions of the POLB.

The genesis of this current brouhaha may be the September 1, 2012 state supreme court rule change that authorized non-attorneys designated as Limited License Legal Technicians who met defined educational requirements to advise clients on family law matters. The Bar’s Board of Governors consistently opposed the rule change as did many members. Well, the squabbling finally boiled over last month and triggered the mass resignations of nearly the entire POLB membership.

To air their grievances, the former POLB members released an 11-page letter written to the Washington Supreme Court where they decried the bar association’s “long record of opposing efforts that threaten to undermine its monopoly on the delivery of legal services.” They also accused Washington Bar Executive Director Paula Littlewood of pursuing “a campaign to eliminate the Practice of Law Board.”

Recognizing the inherent conflict of interest between a trade association beholden to member interests and a mandatory bar that pays lip service to public protection, the former POLB members also wrote “Independence from the Washington State Bar Association was necessary to ensure that the Board’s mission could be advanced free from undue influence by the state’s largest trade association of lawyers.”  See “Board members quit, blast Washington State Bar in fight over UPL, legal technicians.”

As for myself as we approach yuletide, it’s time to keep calm and eat tamales.

____ ____ ____ ____ ____ ____ ____ ____ ___________________________________________________________________PPhoto Credits: Contraband tamales at LAX, US Custom and Border Protection photo;”tamales meal #6,” by HI TRICIA! 王 圣 捷 at Flickr via Attribution-NonCommercial-ShareAlike 2.0 Generic license; Tamales mexicanos 25-dec-2004 Pixeltoo 22:32, 23 Mar 2005 (UTC) at Wikipedia, public domain; tamale meal at morguefile.com.

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