SPRINGFIELD – The Illinois Supreme Court has issued a new rule, 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 liability.
“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.
“We 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.
“A lot 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 explained.
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 areas.
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 prompting.
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,” Grogan said.