The State Bar has formed a working group to consider whether to recommend to the Legislature that malpractice insurance be mandatory for all attorneys.  If you are interested in learning more (or offering public comment at one of their meetings), go to http://board.calbar.ca.gov/Committees.aspx and sign up (at the bottom of the page) to be on the email notification list for the Malpractice Insurance Working Group.  Materials for meetings are posted 10 days in advance of the meeting.  In person meetings alternate between SF and LA, and subcommittees also conduct conference calls.  Both in person and conference call meetings are open to the public, and public comment is permitted.

B&P Section 6069.5 authorizes this task

Section 6069.5. Review and study regarding errors and omissions insurance; subjects to be included; report; consideration of past studies

(a) In recognition of the importance of protecting the public from attorney errors through errors and omissions insurance, the State Bar shall conduct a review and study regarding errors and omissions insurance for attorneys licensed in this state. The State Bar shall conduct this review and study, which shall specifically include determinations of all of the following:

(1) The adequacy, availability, and affordability of errors and omissions insurance for attorneys licensed in this state.

(2) Proposed measures for encouraging attorneys licensed in this state to obtain and maintain errors and omissions insurance.

(3) The ranges of errors and omissions insurance limits for attorneys licensed in this state recommended to protect the public.

(4) The adequacy and efficacy of the disclosure rule regarding errors and omissions insurance, currently embodied in Rule 3-410 of the Rules of Professional Conduct.

(5) The advisability of mandating errors and omissions insurance for attorneys licensed in this state and attendant considerations.

(6) Other proposed measures relating to errors and omissions insurance for attorneys in this state that will further the goal of public protection.

(b) The State Bar shall report its findings under this section to the Supreme Court and the Legislature no later than March 31, 2019.

(c) The State Bar may consider any past studies, including, but not limited to, any relevant actuarial studies, and any current information that is available to the State Bar from other entities, such as the American Bar Association, regarding errors and omissions insurance.

Please read below for the summary from the bar association appointee to the task force

The Mandatory Insurance Working Group (“MIWG”) has met twice, most recently on June 4, 2018. At this meeting, we heard from various speakers who addressed these topics:  History of California’s Malpractice Insurance Studies, Recent Decisions of Idaho, Nevada, and New Jersey considering mandatory Lawyer Professional Liability Insurance and, and Potential Impact of mandatory insurance on Low Income Clients.  We have discussed cost, availability, access to justice issues, disclosure, risk management, reasons for the uninsured, open market model, and high risk pool. 

MIWG has been divided into various subcommittees, each of which is looking at the various aspects of the issue of mandatory insurance.  I am part of the subcommittee looking at ways to encourage attorneys to obtain LPL insurance and other measures to further the goal or public protection.  Our subcommittee has met twice and we have heard from a woman w/ the ARDC in Illinois, which has adopted mandatory insurance. 

One issue we are struggling with is the lack of hard data on who precisely is uninsured and how many people are affected by the lack of LPL insurance.  The general belief is that no lawyer will represent a victim of legal malpractice where the defendant is uninsured and therefore, there’s no record or data on these cases. 

The general belief is that 20-30% of all active lawyers in private practice in California are uninsured and these lawyers are either solo practitioners or in small firms (2-5 lawyers). 

Wesley Lowe, Mannion & Lowe, SF