(Image via Getty)
The Washington State Bar Association’s board recently rejected a recommendation that it require the state’s licensed lawyers to obtain malpractice insurance.
Washington’s decision last week came not long after the State Bar of California’s board also decided against moving forward with a malpractice mandate.
Why Better Financial Acumen is the Key to Law Firm Success in 2025
From training to technology, uncover the essential steps to futureproof your law firm in a competitive market.
Oregon and Idaho remain the only two states with a malpractice requirement for attorneys.
A task force that studied the issue in Washington highlighted that 14 percent of the private lawyers in the state do not carry insurance, and the panel “determined that this lack of protection poses a distinct risk to clients.”
The 17-member task force also said uninsured lawyers create an access-to-justice problem.
“[T]heir clients are typically unable to pursue legitimate malpractice claims against them because plaintiffs’ lawyers cannot afford to bring actions against uninsured practitioners,” the panel wrote.
The Hidden Threat: How Fake Identities used by Remote Employees Put Your Business at Risk—and How to Defend Against This
Based on our experience in recent client matters, we have seen an escalating threat posed by the Democratic People’s Republic of Korea (DPRK) information technology (IT) workers engaging in sophisticated schemes to evade US and UN sanctions, steal intellectual property from US companies, and/or inject ransomware into company IT environments, in support of enhancing North Korea’s illicit weapons program.
The task force recommended that the Washington State Bar’s Board of Governors propose a rule to the state Supreme Court requiring all lawyers in private practice to maintain malpractice insurance in the minimum amount of $250,000 per occurrence/$500,000 total per year.
It suggested attorneys obtain coverage through the private insurance market and report their coverage status during the annual licensing process. Lawyers who failed to comply would have their licenses suspended.
The task force recommended exempting various categories of the state’s 40,000 legal licensees from the rule, including in-house government lawyers, judges, and retired lawyers maintaining their licenses.
The Washington State Bar’s board voted 9-5 against implementing the task force’s mandatory malpractice recommendations.
Some of the arguments made in opposition echoed those expressed in California, including that it was a solution in search of a problem.
Concerns were also raised that a malpractice requirement would hurt access to justice because lawyers would be required to raise their fees to cover the cost of insurance.
In addition, board members cited widespread opposition from members of the bar in explaining their votes against a new requirement.
While some board members agreed with mandate supporters that the percentage of uninsured lawyers was a consumer-protection issue, they suggested there were other ways of addressing the matter.
One proposal was to examine the “South Dakota model.” In that state, lawyers who do not carry a minimum of $100,000 in insurance must disclose that information at the formation of the attorney-client relationship.
“The rule further requires the lawyer to disclose the information in every written communication with the client on firm letterhead and in all advertising,” according to the Washington malpractice task force’s report.
Washington Board of Governors member P.J. Grabicki, who supported a malpractice mandate, suggested a proposal combining South Dakota and Illinois’s approaches be brought back to the board for consideration.
In Illinois, lawyers in private practice who lack malpractice insurance must complete a four-hour online self-assessment course regarding their law firm management and business practices.
But board member Carla Higginson, who voted against a malpractice requirement, recommended the Washington Board of Governors drop the issue entirely.
“I think we do our members a huge, huge disservice by continuing this dialogue in the face of the overwhelming opposition we have heard,” Higginson said.
Even if the State Bar ultimately moves on, that may not be the last of the issue in Washington.
A member of the public told the board he planned to pursue the state’s initiative process in hopes of establishing a malpractice insurance mandate for lawyers.
Lyle Moran is a freelance writer in San Diego who handles both journalism and content writing projects. He previously reported for the Los Angeles Daily Journal, San Diego Daily Transcript, Associated Press, and Lowell Sun. He can be reached at [email protected] and found on Twitter @lylemoran.