HOD opposes mandating insurance disclosure

Issue April 2005

Concerned by a proposal mandating lawyers disclose whether they maintain malpractice insurance, the House of Delegates on March 3 voted to oppose the proposed Supreme Judicial Court rule.

"We as a task force think every lawyer should have insurance, but we don't think it should be a requirement that every lawyer must have insurance," said MBA Treasurer Jeffrey B. Loeb, chairman of the MBA's Attorney Financial Responsibility Disclosure Task Force.

In addition to concern that the rule may be the first step toward requiring mandatory insurance, Loeb said the proposal creates more questions than answers. For instance, no reason is given for why the data will be collected. Additionally, the proposal calls for disclosure but does not indicate the manner in which that information will be disseminated.

In response to the SJC's request for comments on the ABA-approved Model Court Rule on Insurance Disclosure, the HOD also urged the SJC to form a committee to more thoroughly study the proposal and carefully articulate the reasoning behind such a requirement. Additionally, the HOD voted to establish an MBA committee that also will study the pros and cons of the mandatory disclosure.

The issue stems from a request by the SJC for comments on the model rule, which requires lawyers to disclose on their annual registration forms whether they maintain professional liability insurance. It falls on the heels of a proposed amendment submitted last year by the Board of Bar Overseers to Rule of Professional Conduct 1.4, which would require lawyers who do not have a specified amount of malpractice insurance to disclose that fact in writing to their clients. Also submitted was a corresponding amendment to SJC Rule 4.02 to require lawyers to certify whether they have such insurance.

Comments on those proposals were forwarded to the SJC. Unlike the BBO proposal, the ABA rule requires disclosure only on registration forms and not directly to clients.

"We're puzzled as a subcommittee as to why the ABA adopted it and why the SJC is considering adopting it," Loeb said.

Other action

In other business, the House of Delegates:

•  Approved establishing an Amicus Brief Policy Committee, which will review all requests for amicus curiae participation by the MBA and provide a recommendation to the HOD, which will make the ultimate decision on filing amicus briefs.

•  Received an update from General Counsel Martin W. Healy on the status of the Middlesex County Courthouse Committee. The committee has been formed and is being chaired by Suffolk University Law School Distinguished Professor John E. Fenton, Jr. The committee will present a report to the HOD in May.

•  Listened to Roy A. Bourgeois, chair of the Task Force on Lawyer Discipline, who described why attorneys should be concerned about the length of time it takes for lawyers to be disciplined - in some cases upward of 15 years - as well as the lack of fair procedures in place, such as discovery, for lawyer discipline cases. In the next few weeks, the task force will place its report on the MBA's Web site and members will have an opportunity to comment on the proposal, which looks to improving the time standards and procedures available to lawyers facing discipline. The HOD will vote on the proposal in May.

•  Approved a Criminal Justice Section Council report on eyewitness identification. The report will be recommended to the Massachusetts legislature and urges the adoption of several principles including mandating police departments adopt procedures to conduct lineups and photo spreads in a manner that maximizes their likely accuracy. Among other suggestions, the report also urges police and prosecutors be trained on non-suggestive techniques for interviewing witnesses.

•  Received an update from MBA Vice President Edward W. McIntyre, chair of the Judicial Evaluations Standing Committee, on the electronic judicial evaluations. McIntyre emphasized the secure and private nature of the evaluations, which seek to protect both the privacy of the individuals completing the forms as well as the judges being evaluated. (See article on page 1).