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Posts Tagged ‘State Bar of Washington’

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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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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