SPRINGFIELD – The Illinois Supreme Court has issued a new
at the urging of the Attorney Registration and Disciplinary Commission (ARDC), concerning lawyers who opt to practice law without malpractice insurance.
The recommendation from
the commission came as a result of intensive study and a focus on protecting
the public – as well as attorneys – from unnecessary risk. Jim Grogan, deputy administrator and chief counsel for the ARDC, explained the benefits of the new
rule requiring attorneys without malpractice insurance to
conduct a self-assessment of risk.
"The purpose of the program isn’t to sell lawyers malpractice
insurance,” Grogan said, though he added it’s fine
if they do buy it. “It’s basically putting lawyers in a position to better succeed, to
have less stress.”
Before the program was instituted, the ARDC took a look at
the registrations of attorneys in the state. According to Grogan, Illinois has
96,500 registered attorneys, but not all of them practice. In fact, when the
organization looked at the number of practicing attorneys last year, they found
that only about 68,000 of those registered are actually practicing law.
Of that number of practicing attorneys, the ARDC found that
only about 20 percent, or 13,500, are attorneys with solo practices. Solo
practicing attorneys are the most likely to have a need for malpractice risk
preparedness, Grogan explained, whereas attorneys at large law firms, or those
who serve government entities, are protected by insurance or the lack of
“When we broke down the stats of the solos, 41 percent of the
practicing bar who are sole proprietors in Illinois do not have malpractice insurance,”
said Grogan. “That’s a large percentage.”
With almost half of the solo
attorneys unprotected from malpractice claims, the ARDC decided to make a
change in the way it approached the risk and address it proactively.
“We were thinking of other ways to deal with getting the
word out, trying to educate, not just to punish,” Grogan explained.
While entities like the ARDC dealt with major issues in a punitive fashion in the past, the
new direction works to educate and encourage attorneys to protect themselves.
thought that when you come right down to it, lawyers want to be as risk-free as
possible,” Grogan said.
Beginning in 2018, attorneys registering with the ARDC who
don’t have malpractice insurance will be required to a self-assessment.
of people have been freaking out when they hear self-assessment because they automatically
think, ‘Oh no! I’m sitting for another bar exam,’ and that’s not the purpose,” Grogan
The self-assessment is designed to allow attorneys to complete what
basically amounts to interactive continuing legal education (CLE) followed by a
test that’s designed with the intention of being helpful, and providing a
list of resources for those attorneys who need additional help in certain
Grogan points out that attorneys have mandatory CLE
requirements to fulfill anyway, so it becomes a kind of win-win scenario. The
assessment will provide four hours of free CLE, and although it’s only required
for attorneys without malpractice insurance, it’s available to any attorney
who wants to take advantage of it.
Attorneys who do have malpractice insurance go through a
rigorous application system for approval underwriting in which they are asked
detailed questions about their practice that they might not consider without
Grogan related the story of one attorney who, when going through the
process, had been asked about the locks on the back door of his office and the
security of client files. According to Grogan, it’s something the lawyer hadn’t
previous considered as a risk.
For now, the ARDC is working to educate lawyers
on the new requirement and what it means to them. The program, which Grogan said the ARDC hopes
will be ready to begin beta testing in the summer, may lead to more requirements
or it may not.
“This is just the first step. We don’t know whether there
will be a second step, or if there is a second step where we’ll go with it,”