Protecting the public

The Virginia State Bar Council took decidedly different positions Friday on two issues described as public protection measures.

One was a proposal to require insurance companies to notify claimants when they mail settlement checks to the claimants’ attorneys. That measure stemmed from the theft of the proceeds of such checks by a small percentage of attorneys. A study of lawyer disciplinary cases showed that lawyers had taken $247,000 in that manner over a four-year period.

The list of objections to the proposal, recited by Virginia Trial Lawyers Association President Chuck Zauzig and plaintiff’s attorneys on the council, was long: interference with the attorney-client privilege, the possibility of improper conduct by insurance companies, fear of the claimant that family members or neighbors would learn about the money, and a bad message about the integrity of the plaintiff’s bar. The proposal “creates a presumption that plaintiff’s lawyers are crooks,” said executive committee member Irv Blank.

Arguments that the notice would alert the client to possible dishonesty by the lawyer or prevent serial thefts by the lawyer were not nearly enough to carry the day. The measure failed by a 54-7 vote.

The second issue was whether the VSB should continue to explore requiring all lawyers in private practice who routinely represent public clients to carry malpractice insurance. Almost 90 percent of such lawyers do so now. Darrell Tillar Mason, chair of the Special Committee on Lawyer Malpractice, said support from the proposal turns on whether one views the issue from a “data driven” or “principle driven” perspective. Evidence of a serious problem for lawyers or the clients is slim, she acknowledged, but some lawyers believe that insurance against their negligence is part of their fiduciary duty to their clients.

Council voted 38-21 to have the committee develop a proposal or proposals for a mandatory malpractice program.