5 The Professional Lawyer 22 (A.B.A., No. 2, Feb. 1994).

Professional Lawyer
November, 1997

Feature

*2 PERMANENT DISBARMENT: A MARKET ORIENTED PROPOSAL

Ronald D. Rotunda [FNa1]
Mary M. Devlin [FNaa1]

Copyright © 1997 American Bar Association; Ronald D. Rotunda, Mary M. Devlin

WESTLAW LAWPRAC INDEX
ETH--Ethics & Conflicts of Interest

It is the popular perception that disbarment is permanent, and that a disbarred lawyer is never again able to practice law. [FN1] In fact, it is the rare jurisdiction that provides for truly permanent disbarment, and it is rarer still when these jurisdictions impose this permanent sanction. [FN2]

The American Bar Association rejects the concept of truly permanent disbarment, that is, forever prohibiting the disbarred lawyer from applying for readmission to practice law. Rehabilitation, not retribution, is the purpose of lawyer discipline. [FN3] For example, if the factual situation that caused the sanctionable conduct (e.g., alcoholism, or substance abuse) no longer exists (i.e., the lawyer is truly rehabilitated), then the lawyer may seek readmission because the reason for disbarment no longer exists. That does not mean that lawyers are immune from punishment for misconduct, but that punishment should be meted out in a judicial forum, typically in a malpractice action or in a criminal prosecution for conversion. [FN4]

The great majority of jurisdictions [FN5] follow the ABA's recommendation opposing permanent disbarment. The principle is embodied in the MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT, which provide that if the lawyer's misconduct is so severe that even a three-year suspension is inadequate, the "lawyer should be disbarred." [FN6] However, the disbarred lawyer may later seek readmission to the practice of law if at least five years have passed since the effective date of his or her disbarment. [FN7]

The possibility for readmission does not mean that a disbarred lawyer is, in effect, suspended for only five years, because--if the disbarred lawyer does seek readmission--the presumption is against it. [FN8] Moreover, while few states officially provide for truly permanent disbarment, there is often de facto permanent disbarment in the sense that, of the people who are disbarred, very few ever apply for readmission, and, of those who reapply, the vast majority are not readmitted. The possibility of readmission is supposed to encourage disciplined lawyers to rehabilitate themselves so that, when the reasons that caused the lawyer to engage in improper conduct no longer exist, the sanction of disbarment can be lifted. [FN9]

That, at least, is the theory. The problem is that some lawyers who never should have been readmitted are, unfortunately, allowed to practice law again, and they then go on to harm new clients and commit new wrongs. [FN10] While the number of improperly readmitted lawyers is small, measured as a percentage of the total number of practicing lawyers, the fact remains that even a few apples in a very large barrel can cause a lot of damage.

Permanent Disbarment in Practice

The typical response to the complaint that some disbarred lawyers should not be readmitted is that bar authorities should toughen their standards and implement truly permanent disbarment. [FN11] Advocates say that it is a "great white lie" to use the term "disbarment" unless disbarment is truly permanent. [FN12]

A major problem with the proposed solution of truly permanent disbarment is that states are not in any hurry to institute it. Even state discipline authorities have shown little interest in lobbying for truly permanent disbarment--even though they are at the front lines, they sometimes protest a particular applicant's motion for readmission, and they possess, by definition, a prosecutor's mentality.

The reason many legal ethics prosecutors are reluctant to push for truly permanent disbarment is that they often regard it as not worth the effort. Imposing truly permanent disbarment is not a cost-free exercise. Experience shows that a great deal of time, effort, and resources are spent on prosecuting these cases. For example, it takes New Jersey (a permanent disbarment jurisdiction) two years longer to prosecute a case resulting in disbarment as compared to a case resulting in suspension. The presumed deterrent effect of permanent disbarment may not justify the disproportionate use of resources.

One might think that the threat of permanent disbarment would encourage a respondent to work out a plea agreement when the misconduct is serious enough to merit that sanction. *12 However, if a jurisdiction with truly permanent disbarment allows the respondent to avoid this sanction by plea bargaining, then the administration of this sanction would be self-defeating; those lawyers who have engaged in the more serious conduct will be the ones who plea bargain down to a suspension. We are then left with a situation where there is permanent disbarment on the books, but not in practice.

If one supports truly permanent disbarment--in practice, and not just in theory--the next question one must decide is which conduct justifies this sanction. [FN13] It is much easier to get people to agree that there should be permanent disbarment than it is to get these same people to agree on defining the parameters of the conduct that justifies this sanction. Even if we could agree on what are the categories of wrongdoing that merit truly permanent disbarment, there would still be no agreement as to which cases fall in these categories. [FN14] Everyone has their own list of despicable acts, but the list keeps changing as we move from one person to another. The same person's list will also change over time simply because individuals change their views.

In addition, there will be cases where society, and not merely an individual, changes its views. What was once thought to be a heinous act (typically an act with political overtones) is regarded differently at a later, calmer, time. Truly permanent disbarment disallows correcting what are eventually seen as mistakes of the earlier era that held a different view of the world. [FN15]

Even if views do not change, the evidence can. If the respondent can prove that the earlier finding of misconduct was in error (the witness recanted, evidence is proven to have been falsified), one would think that even truly permanent disbarment should allow for the correction of this error. If even "permanent" disbarment may not always be truly permanent, the real question then is to determine what procedures should be instituted to assure that the readmitted lawyer is not likely to turn back to his old ways and what can be done to protect the public while allowing some disbarred lawyers to be readmitted.

While a lawyer's readmission after disbarment is not a matter of course, such readmission does occur, and when it does, the admitting authorities have made some notable mistakes. These readmitted lawyers have gone on to cause substantial harm to other clients. [FN16] These mistakes may be a result of an abuse of discretion or of a good faith error. The people who make the decision to readmit are fallible, and it is inevitable that mistakes will be made. Consequently, we must find ways to improve the system and to institute reforms that take into account the fact that errors are inevitable even by decision-makers who act in good faith.

We may compare readmission of a disbarred lawyer to parole of a felon. [FN17] The fact that some people should not be paroled does not mean that no one should be paroled. If the authorities have the power to parole a felon, that means that sometimes the authorities--acting in good faith or even corruptly--may grant parole when it should not be granted. The fact that some people are not redeemed does not mean that no one can be redeemed.

The solution is not to eliminate the possibility of readmission for all lawyers simply because some should not be readmitted. There is another solution, and that lies in using the market system in a way that protects clients while allowing for the readmission of disbarred lawyers. Because discretion can be abused and good faith mistakes can be made, the system that provides for readmission must have a self-executing check. [FN18]

A Market Oriented Solution and a Modest Proposal

At a minimum, a disbarred lawyer seeking readmission should be in no better position than a new applicant applying for admission to the bar for the very first time. Thus, no disbarred lawyer should be readmitted unless he or she first takes and passes the bar examination. Not all states impose this requirement but they should. [FN19] Rule 25 of the MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT already recommends this requirement as a permissible condition. This condition should be mandatory. For similar reasons, the disbarred lawyer should pass the character and fitness examination and the multistate ethics examination.

The disciplinary authority, when allowing readmission, may find it appropriate in particular cases to impose other hurdles on the disbarred lawyer when the particular fact situation warrants, such as (1) requiring that the lawyer's practice be limited to a certain area of the law, (2) requiring that the lawyer associate with an experienced supervisory lawyer, (3) requiring the lawyer to participate in continuing legal education courses, and, where appropriate, (4) requiring abstention from the use of drugs or alcohol. [FN20]

However, that is not enough. The disbarred lawyer is unlike the typical new applicant to the bar because we know that the disbarred lawyer is capable of engaging in acts meriting disbarment. Hence, the lawyer seeking readmission (and perhaps also the lawyer who has been suspended for six months or more) should provide yearly proof (for a certain number of years, e.g., a period of five or ten years) that the lawyer has adequate malpractice insurance (with no deductible or with only a nominal deductible) and is bonded. [FN21]

*13 Malpractice insurance protects the client from the lawyer's negligent wrongs. Bonding is an additional and necessary requirement because mere malpractice insurance will not protect the client if the lawyer engages in intentional torts, such as conversion.

The requirements of insurance and bonding introduce an important market control into the system. If the disciplinary authorities have to monitor the lawyer readmitted after disbarment or suspension, that puts a burden on the agency, a burden that the agency cannot effectively assume. [FN22] To monitor effectively, the disciplinary authority would require a substantial infusion of additional resources. The money to meet this new burden would be levied upon those lawyers who have committed no ethical violation. They would be the ones obligated to pay the dues to support an effective monitoring system on readmitted lawyers. The innocent would have to subsidize the guilty.

On the other hand, if the disbarred-now-readmitted lawyer has the burden of obtaining adequate insurance and bonding, then that lawyer, whose past actions have caused harm, will have to pay for the risks that his or her future actions might cause. The disciplinary authority will not have to assume the costs of monitoring because the private insurance and bonding companies will have every incentive to monitor the newly readmitted lawyer. Just as the fire insurance company monitors the warehouse to make sure that it has installed sprinklers, so will the bonding and insurance companies monitor the lawyer readmitted to practice after having been disbarred. [FN23]

It is certainly true that some readmitted lawyers may be employed in jobs where they do not handle client funds and may argue that bonding is unnecessary. For example, the newly readmitted lawyer may be working for a government agency drafting legislation. On the other hand, a few months later, she may change her position. Even if she keeps the same job, she may be assigned different responsibilities. The disciplinary authorities could seek to monitor her activities to take such changes into account, but then the cost of monitoring will be disproportionately borne by the lawyers who have done nothing wrong. And, if insurance or bonding is unnecessary, it should not be too expensive to obtain, so the burden on the newly admitted lawyer would not be that great. By removing discretion from the disciplinary authorities to lift the insurance and bonding requirement, one also removes the possibility that the authorities will abuse that discretion by favoring the more well-connected lawyer seeking readmission. [FN24]

Similarly, if the readmitted lawyer was disbarred for political reasons that a calmer time views in a different light, [FN25] then it should not be difficult for that lawyer to secure the necessary insurance because the reasons that led to the discipline were not caused by incompetence or other reasons that would reflect on the lawyer's insurability.

Admittedly, some people (because of their risk category) will find it more difficult and expensive to buy the necessary insurance and secure bonding, just as accident-prone automobile drivers who have had their licenses revoked find it more difficult and expensive to secure car insurance. But, as Marley's ghost said in Charles Dickens' A Christmas Carol, we carry the chains that we forged in life. If the disbarred-readmitted lawyer cannot afford bonding and malpractice insurance, the low-risk lawyers should not be forced to subsidize them. The market-oriented solution requires that high-risk lawyers pay their own freight. [FN26]

The problems that these uninsurable lawyers face are problems of their own making. They have made their own beds and now must lie in them. Their past actions have been unethical in a serious way (even non-permanent disbarment is only reserved for the most serious offenses). The newly readmitted (formerly disbarred) lawyers should pay for insurance and bonding so that, if some of these lawyers go on to prey again upon clients or third parties, those victims can be made whole. If state disciplinary law requires such insurance and bonding, that requirement will help create a market to service this need. [FN27]

Some people may argue that a requirement of insurance or bondingis improper because the disciplinary authorities should not delegate their authority to a private company, such as an insurance company. [FN28] First, requiring malpractice insurance is no more a delegation of official authority to a private insurance company than requiring automobile insurance is the delegation of the power of the state police to a private insurance company. [FN29] Second, the MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT already provide, as a condition for reinstatement (after suspension) or readmission (after disbarment), for private attorneys to monitor the actions of the readmitted lawyer. [FN30] This concept of third party monitoring is nothing new. Third, monitoring by the insurance or bonding company (a monitoring that they engage in for their economic self-interest) does not preclude monitoring by disciplinary authorities. The disciplinary authority is not delegating its power to monitor; it is simply using the invisible hand of the market place as an additional tool to protect clients of the readmitted lawyer.

We must remember that malpractice insurance carriers already monitor law firms in order to control their risks. [FN31] If they monitor the average, typical lawyer, who voluntarily takes out malpractice insurance, we should not be concerned that they would also have a de facto monitoring role over the disbarred-readmitted lawyer (whom we can regard as below average and atypical).

*14 Conclusion

Requiring disbarred-readmitted lawyers to obtain malpractice insurance is necessary to protect the future clients of these lawyers. It only requires the readmitted lawyer to do what the good lawyer already does--obtain insurance coverage. "Every attorney engaged in the practice of law should have insurance and should treat the insurance company as an active partner in risk management." [FN32] If every practicing attorney should have malpractice insurance, surely every disbarred-readmitted attorney should be required to have this insurance.

If disbarred lawyers are truly rehabilitated, they should be readmitted, as long as society and the clients can be protected. Compulsory malpractice insurance and bonding will provide that protection, while assuring that these lawyers' skills and the investment in their education will not go to waste. The requirement of bonding and malpractice insurance will not only protect the public, but it will also help protect the readmitted lawyer, because it is in the economic self-interest of the insurance carriers and bonding companies to monitor their policy holders, identify risks, and eliminate them.

The first lawyer's malpractice claim occurred in 1425 in England, and in 1796 in the United States, but it was not until the 1930's that lawyer's malpractice insurance policies were written in this country. [FN33] Today, while compulsory malpractice insurance is common in European countries, it is rare here. [FN34] The proposal of this article is much more modest than requiring all practicing lawyers to show proof of malpractice insurance and bonding as a condition for continuing to practice law. Only those lawyers who have been disbarred would have to shoulder this burden. It is about time that they do.

We are indebted to Sandra Pulley, J.D., '99, the Stuart N. Greenberger Research Assistant in Legal Ethics, and to Ellyn S. Rosen and Cara Nader of the ABA Center for Professional Responsibility.

[FNa1]. Note 1. Ronald D. Rotunda is the Albert E. Jenner, Jr., Professor of Law at the University of Illinois at Urbana-Champaign.

[FNaa1]. Note 2. Mary M. Devlin is Regulation Counsel, American Bar Association Center for Professional Responsibility.

[FN1]. Ann Davis, Toughening Readmission Procedures, Bar Readmissions Cloaked in Secrecy and The Myth of Disbarment, NAT'L L. J. (August 5, 12 & 19, 1996) (three-part series). Other reports have followed in the wake of Ms. Davis' influential articles: Ken Armstrong, Hear the One About the Lawyer Who...?: It's a Joke How Easily Some Disbarred Attorneys Are Reinstated, CHI. TRIB., Nov. 24, 1996, § 2, at p. 1; Susan Adams, Sleaze Control?, FORBES MAGAZINE, Oct. 21, 1996, at 134. Ms. Davis' important study showed that Pennsylvania has the highest readmission approval rate of any large state, with 86 percent or 19 out of 22 lawyers who have been disbarred or who have resigned gaining readmission. Missouri readmitted one disbarred lawyer for every 6.4 is disbarred; Tennessee, one in 5.2 and Montana 1 in 2. See also Disbarments Found to be Impermanent, CHI. TRIB., July 29, 1996 WestLaw 2694235 (Reutters).
Figures regarding the number of readmitted lawyers who had earlier been disbarred must be kept in perspective. The total number of lawyers readmitted in a particular year may, in fact, include lawyers who were disbarred many years prior to their readmission. Also, most disbarred lawyers never apply for readmission, so that when one looks at the number of lawyers who are readmitted, one is looking at a self-selected sample. Data reported for the 1995 SURVEY ON LAWYER DISCIPLINE SYSTEMS, Chart III (containing disciplinary agencies' responses to whether permanent disbarment is allowed) indicate that approximately 900 lawyers were disbarred in 1995 while approximately 30 who had been disbarred in previous years were reinstated. Nonetheless, Ms. Davis' research and findings show that there are some disbarred lawyers who should not have been readmitted, and those readmitted lawyers caused substantial harm to their clients.

[FN2]. Currently, only California, Illinois, Indiana, Iowa, Mississippi, New Jersey, Ohio and Oregon have rules or precedent that provide for some form of permanent disbarment. For this information and related information, the authors are indebted to the unpublished survey results prepared by the National Organization of Bar Counsel and research by the staff of the ABA Standing Committee on Professional Discipline for the 1995 SURVEY ON LAWYER DISCIPLINE SYSTEMS, Chart III.

[FN3]. "Since the purpose of lawyer discipline is not to punish, readmission may be inappropriate...." ABA MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT, Rule 25, Commentary, at p. 25 (1996).

[FN4]. As the Massachusetts Supreme Judicial Court noted: "Disbarment is not a permanent punishment imposed on delinquent attorneys as a supplement to the sanction of the criminal law .... Such a harsh, unforgiving position is foreign to our system of reasonable, merciful justice. It denies any potentiality for reform of character." In re Hiss, 368 Mass. 447, 333 N.E.2d 429, 434 (1975).

[FN5]. See note 2, supra.

[FN6]. ABA MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT, RULE 10(A), and Commentary, at pp. 25-28 (1996).

[FN7]. "Readmission" is defined as occurring "when a disbarred lawyer is returned to practice." ABA MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT, Rule 25, Commentary, at p. 61 (1996).

[FN8]. ABA MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT, Rule 25, Commentary, at p. 28 (1996).

[FN9]. To some extent, these principles may have a constitutional basis. In Schware v. Board of Bar Examiners, 353 U.S. 232(1957), the Court held, on due process grounds, that the State of New Mexico could not refuse to admit a law applicant for admission to the bar because, under the circumstances, it could not be said that his prior arrest record, his use of aliases, and other facts would raise substantial doubts about his present good moral character. For example, his arrests, which "all occurred many years ago," are "wholly insufficient to support a finding that Schware had bad moral character at the time he applied to take the bar examination." 353 U.S. at 243 (emphasis added; footnote omitted).
Note that the Court did not rely on a free speech or right of association theory. In fact, the Court specifically did not reach that issue. 353 U.S. at 243 n. 13. Schware, in holding that a bar applicant cannot be denied admission when the past facts do not support a finding of present bad moral character, suggests that the requirement that there are constitutional limitations on the power of the state to deny readmission to an applicant whose past acts no longer support a finding of present bad moral character. See generally 4 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE (West Pub. Co., 2d ed., 1992) § 20.44 ("Restrictions on Entry to the Bar").

[FN10]. Ann Davis, in an extensive three-part series, offers many examples of such mistakes. Davis, supra note 1.

[FN11]. The question whether there should be truly permanent disbarment-- where the disbarred lawyer is never allowed to try to be readmitted to the bar--has been much debated in the literature. Compare, e.g., David E. Johnson, The Case For Permanent Disbarment, 5 THE PROF'L LAWYER 22 (ABA, No. 2, Feb. 1994) with Ronald D. Rotunda, The Case Against Permanent Disbarment, 5 THE PROF'L LAWYER 22 (ABA, No. 2, Feb. 1994).

[FN12]. David E. Johnson, The Case For Permanent Disbarment, 5 THE PROF'L LAWYER 22 (A.B.A., No. 2, Feb. 1994).

[FN13]. For example, if commingling client trust funds merits permanent disbarment, what of the lawyer who commingles a small amount, and voluntarily confesses the wrongdoing, and reimburses the client? If we must permanently disbar that person, the lawyer has no incentive to confess. If there is truly permanent disbarment, there will still be hard cases where the sanction appears too onerous to many people. See Henry Gottlieb, Switching on Ethics, N.J.L.J. 1, 12 (Dec. 2, 1996), pointing out that as soon the state Supreme Court announced an automatic disbarment rule, "lawyers representing neurotic, psychotic, schizophrenic, stressed-out, drug abusive and alcohol-besotted practitioners began arguing for exceptions." This was followed by the Chairman of the New Jersey Disciplinary Review Board "beseeching the state Supreme Court to create a mental health exception to the automatic-disbarment rule for thieving attorneys."

[FN14]. Deborah Rhode, Moral Character as a Professional Credential, 94 YALE L.J. 491 (1984) is a thorough empirical examination of the meaning of "character and fitness," a term used by bar admissions committees in judging applicants to th bar. Professor Rhode could find no theory that would make consistent the decisions of these bar committees refusing admission to the practice of law on the basis of bad moral character.

[FN15]. Cf. In re Anastaplo, 366 U.S. 82 (1961). See also In re Anastaplo, 3 Ill. 2d 471, 121 N.E.2d 826 (1954), cert. denied, 348 U.S. 946 (1955). Mr. Anastaplo was refused admission to the Illinois Bar when he refused to tell the Character and Fitness Committee whether he was a member of the Communist Party and whether he believed in God. See 366 U.S. at 101-02 (Black, J., dissenting, joined by Waren, C.J. & Douglas & Brennan, JJ.).

[FN16]. E.g., Ann Davis, supra note 1.

[FN17]. In the literature one often finds reference to the statement that the practice of law is a "privilege," not a right. Nothing is gained in understanding by calling admission to the practice of law a "privilege." Imprisonment denies a felon liberty; parole restores that liberty. Disbarment denies a lawyers the ability to practice; readmission restores that ability. See William Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968). Modern cases acknowledge that he "practice of a profession is, without question, a valuable property of right, of which one cannot be arbitrarily deprived." Burleigh v. State Bar, 98 Nev. 140, 145, 643 P.2d 1201, 1203 (1982).

[FN18]. More publicity, more sunlight, also is an important check on the readmission process of disbarred lawyers. ABA policy--but not the policy of many states--provides that if the board (or court)decides to readmit a disbarred attorney, it should publish a detailed opinion explaining why it is doing so. ABA MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT, RULE 25(D) (1996), at p. 59. There should also be a publication of the lawyer's petition for readmission, and a request for public comment. Id. at RULE 25(D), p. 59. Surprising, some states do not follow this procedure. Florida, for example, does not provide for public hearings for the readmission of disbarred lawyers, while requiring public hearings for suspended lawyers. Ann Davis, Judge: Public is Not Allowed: Ex-client Loses in Bid to Object to His Former Lawyer's Petition For Reinstatement, 19 N'L L. J., Nov. 11, 1996, at A6, col. 1. All states should adopt the ABA policy. More openness in the readmission process will increase public confidence in the system. Paula L. Hannaford, What Complainants Really Expect of Lawyer Disciplinary Agencies, 7 THE PROF'L LAWYER 1 (ABA, No. 3, 1996).

[FN19]. The Florida Bar v. Hipsh, 586 So.2d 311, 313 (Fla. 1991): "A disbarred lawyer, however, must seek readmission to the Bar in the same manner as a law school graduate."

[FN20]. ABA MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT, RULE 25(I) at p. 60 (1996).

[FN21]. Currently, only Oregon requires mandatory legal malpractice insurance of all practicing lawyers. Manual R. Ramos, Legal Malpractice: The Professional's Dirty Little Secret, 47 VAND. L. REV. 1657, 1726 (1994); Frederic L. Goldfein, Legal Malpractice Insurance, 61 TEMPLE L. REV. 1285, 1296 (1988).

[FN22]. In re Scannell, 289 Or. 699, 703, 617 P.2d 256, 258 (1980) (per curiam): "We have not often found 'probation' to be a practical disciplinary sanction, because neither the Court nor th the Bar has effective machinery for supervising stringent conditions, and without conditions and supervision 'probation' is largely meaningless."
Accord, ABA MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT, Rule 10(A)(3) (1996), Commentary at p. 27: "The capacity and resources of the agency to effectively supervise respondents on probation is limited."

[FN23]. William H. Fortune & Dulaney O'Roark, Risk Management for Lawyers, 45 S.C. L. REV. 617, 636 (1994).

[FN24]. Cf., Ronald D. Rotunda, The Litigator's Professional Responsibility, 77 ILL. B.J. 192, 194 & nn. 20-22 (Dec. 1988).

[FN25]. See note 14, supra.

[FN26]. Opponents of mandatory insurance typically express the concern that better lawyers will be forced to subsidize the insurance premiums of high-risk lawyers who could not obtain affordable malpractice insurance on their own. Manual R. Ramos, Legal Malpractice: The Profession's Dirty Little Secret, 47 VAND. L. REV. 1657, 1726-28 (1994).
This objection does not apply to my proposal. First, it will impose no burden on lawyers who have not been disbarred. Second, and most importantly, the high- risk lawyers are not supposed to be subsidized by the low-risk lawyers.
The Oregon malpractice plan requires malpractice insurance of all practicing lawyers. The premium for the insurance policy is paid through state bar dues. Robert T. Reid, Lawyers' Malpractice Insurance Coverage in the United States, PRACTICING LAW INSTITUTE: REAL ESTATE AND PRACTICE COURT HANDBOOK SERIES, No. N4-4447 (Oct. 31, 1985), at 131. The Oregon mandatory plan treats "all lawyers the same until they have shown themselves to be different by generating claims (at which point the lawyers are surcharged)." Quoted in Nicole Cunitz, Mandatory Malpractice Insurance for Lawyers: Is There a Possibility of Public Protection without Compulsion?, 8 GEO. J. LEGAL ETHICS 637, 651 n. 73 (1995). That is the way that it should be: the higher risk lawyer should pay higher malpractice fees.

[FN27]. When Oregon instituted mandatory malpractice insurance for lawyers, it created "an available and stable insurance market." Frederic L. Goldfein, Legal Malpractice Insurance, 61 TEMPLE L. REV. 1285, 1296 (1988).

[FN28]. Some discipline authorities have raised this concern at ABA meetings. Cf. also Nicole Cunitz, Mandatory Malpractice Insurance for Lawyers: Is There a Possibility of Public Protection without Compulsion?, 8 GEO. J. LEGAL ETHICS 637, 667-68 (1995).

[FN29]. Another analogy is found in the Dram Shop Acts, which impose civil liability on liquor establishments that serve drunken patrons who then drink, drive, and cause car accidents. The Dram Shop Acts give the taverns an economic incentive to monitor their customers. This private monitoring does not displace the police as an enforcement authority.

[FN30]. ABA MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT, Rule 25(I) (1996), "Conditions of Reinstatement" provide that, as a condition of reinstatement, the lawyer may be required to associate with an "experienced supervising lawyer." If the "monitoring lawyer" reports, with respect to the reinstated or readmitted lawyer, that there "exists a potential for harm to the public, the monitoring lawyer shall notify the court and, where necessary to protect the public, the lawyer may be suspended from practice under Rule 20 (B)."

[FN31]. See Anthony E. Davis, Professional Liability Insurers as Regulators of Law Practice, 65 FORDHAM L. REV. 209 (1996); Charles Silver, Professional Liability Insurance as Insurance and as Lawyer Regulation: Response to Davis, 65 Fordham L. Rev. 233 (1996).

[FN32]. Fortune & O'Roark, supra note 23 at 632.

[FN33]. Robert T. Reid, Lawyers' Malpractice Insurance Coverage in the United States, PRACTICING LAW INSTITUTE: REAL ESTATE AND PRACTICE COURT HANDBOOK SERIES, No. N4-447 (Oct. 31, 1985), at 124-25.

[FN34]. Ronald D. Rotunda, Legal Ethics, the Czech Republic and the Rule of Law, 7 THE PROF'L LAWYER 1, 5 (ABA, Aug. 1996); John Leubsdorf, Legal Malpractice and Professional Responsibility, 48 RUTGERS L. REV. 101, 155 (1995).