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