In many ways, the tort liability problems facing lawyers are no different than those facing doctors, social workers, architects and local government officials -- problems that have caught the attention of everyone from newspaper editors to the president of the United States.
But from another perspective, there's something ironic and even, to the layman, a bit amusing about the alarm when it is raised by lawyers. For one thing, they are more or less enjoined from putting forward one view that is popular with other groups hit with increasing litigation and decreasing insurance coverage: blaming the lawyers.
The National Association of Manufacturers, for instance, recently blasted the Association of Trial Lawyers for passing out "misinformation" and "obfuscating the truth about the litigious trend in this society." And no less a lawyer than Richard K. Willard, the assistant attorney general in charge of the Reagan administration's investigation of the liability crisis, insisted that the big fees lawyers can pick up in such cases are a major reason why the numbers are on the rise.
But, in fact, lawyers are finding themselves in the same boat as practitioners of other professions. "The growing number of malpractice claims has led to hefty insurance rate increases, limits on coverage, and instances in which lawyers can't get malpractice coverage," noted the American Bar Association's Paul Marcotte in the April issue of the group's Journal. Nationwide, about one lawyer in 12 is facing a malpractice suit, and in some states -- notably California -- the level is a lot higher than that.
Donald Brayer, vice president for underwriting at Shand, Morahan & Co., a suburban Chicago firm specializing in professional liability insurance, says that the company seldom will write more than a $5 million policy for even a large firm now. A year ago, it was willing to carry risks up to $30 million for some law firms.
In response, bar associations in at least eight states have set up their own insurance companies to cover members, and Marcotte predicts that others will follow. Bar groups are trying, too, to educate local lawyers on how to change the way they practice law to prevent situations that can give rise to malpractice suits. For instance, a lot of litigation centers on alleged conflicts of interest -- when a lawyer is both a legal adviser to and a director of a client corporation, for instance -- that might be headed off with better screening of lawyer commitments.
But new figures compiled by the ABA's Committee on Lawyers' Professional Liability suggest that practicing preventive law may not be as easy as it first sounds. After analyzing 29,227 claims filed by lawyers under the malpractice insurance policies over five years ending last Sept. 30, they found that relatively few cases involved situations where the lawyers should have known they were in over their head.
A surprising 94 percent of the claims involved areas of specialization with which the lawyers normally dealt. And most of the defendants in such suits were experienced practitioners: Only 4.5 percent had been admitted to the bar for four years or less, and almost two-thirds had been practicing for more than 10 years. The bulk of the cases were brought against lawyers operating on their own or in very small firms.
Only 12 percent of the cases alleged intentional wrongs. Most often, claims arose either from mistakes lawyers made about what the law really was, or from bungling in law office administration that meant, for instance, that the deadline to file a legal paper was missed.
The ABA committee's report shows that the lawyers most often hit by a malpractice suit are those handling personal injury claims. Of the 29,227 cases, just over 25 percent were brought by plaintiffs in such litigation, which just may say as much about the plaintiffs as it does about the quality of law being practiced. Real estate deals gave rise to almost as many legal malpractice claims -- 23.3 percent of the total -- followed by cases involving bankruptcy or debt collection and by those involving divorce or other family law matters.
The figures reported in the study suggest that for most lawyers, being hit with such a malpractice claim is not very damaging to the pocketbook -- either for them or their insurance carriers. The claimants got less than $1,000 in 69.9 percent of the cases, and more than $50,000 in 4.9 percent of the cases.
The lawyers admit that when they turn out to be defendants in a malpractice suit, they bring a different perspective to the problem. They do not interpret a suit as an attack on their basic professionalism -- as many physicians do -- and they are willing to live with developments in the law that favor plaintiffs.
In a roundtable discussion last year between lawyers and doctors about medical malpractice issues, Walter H. Beckman, a trial lawyer who usually represents plaintiffs, noted: "It never occurs to me as a lawyer that, even though my particular part of the profession is in the same position as the doctors are in and have been in for a while, that my profession should be treated separately from the way other people are treated in courts."