CBA Record

LEGAL ETHICS

John Levin’s Ethics columns, which are published in each CBA Record, are now in-

dexed and available online. For more, go to http://johnlevin.info/ legalethics/.

BY JOHN LEVIN New ARDC Rule: Lawyers Without Malpractice Insurance Must Take Course S ome readers of this column may remember the long and somewhat acrimonious debate that preceded

ETHICS QUESTIONS? The CBA’s Professional Responsibility Commit- tee can help. Submit hypothetical questions to Loretta Wells, CBA Government Affairs Direc- tor, by fax 312/554-2054 or e-mail lwells@ chicagobar.org.

major malpractice insurers have their own educational programs and resources to educate and advice policyholders. It only makes good business sense to reduce the likelihood of a claim. Larger institutions and law firms also provide resources to their members and employees for the same reason. Under the new Rule, the ARDC will provide a similar service to the unin- sured. A second purpose of the new rule is to motivate lawyers to purchase malpractice insurance. According to research provided by the ARDC, most of the uninsured lawyers in Illinois are sole practitioners. According to the ABA, five to six percent of private attorneys face a malpractice claim every year. Unless you want to represent yourself in the claim (a generally accepted “very bad idea”), the cost of defense could be excessive. By drawing the uninsured bar’s attention to the issue of malpractice liability and insurance on a regular basis, the new rule may cause more Illinois law- yers to purchase the coverage over time. The amendments to Rule 756 are a form of regulatory program called “proactive management-based regulation.”This concept was discussed at length in a 2013 Hofstra Law Review article [Vol. 42:233] byTed Schneyer titled “The Case for Proactive Management- Based Regulation to Improve Professional Self-Regulation for U.S. Lawyers.” The article draws a distinction between two forms of regulation. The first is “professional self regulation” in which “the courts adopt a code of professional conduct based heav- ily on the ABA rules in order to govern the lawyers practicing in their jurisdictions…. And the courts and their agencies impose discipline, ranging from private warnings to disbarment, on lawyers whom they find to

the adoption by Illinois of a minimum continuing legal education requirement. Readers may also recall that Illinois was far from the first jurisdiction to adopt such a requirement. However, Illinois has now taken the lead in a new area of legal education. Under amended Illinois Supreme Court Rule 756(e)(2), commencing in 2018 Illinois lawyers who do not carry legal malpractice insurance must take a self-assessment on “an interactive online educational pro- gram” provided by the Administrator of the ARDC “regarding professional respon- sibility requirements for the operation of a law firm.” The subsection further provides that: “The self-assessment shall require that the lawyer demonstrate an engagement in learning about those requirements and that the lawyer assess his or her law firm operations based upon those require- ments.” The results of the self-assessment are confidential and may not be used in evidence in a disciplinary proceeding. The biennial course also carries 4 hours of MCLE professional responsibility credit. The purpose of this new provision is two-fold. The first is to educate lawyers on practices and procedures to reduce the chances of a malpractice claim. The

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have breached code rules.” The second is “proactive management- based regulation,” which is “a regulatory model formulated by theorists Cary Coglianese and David Lazer that requires firms to engage in their own planning and develop their own management processes in order to achieve externally defined but broadly stated public goals. Compliance with professional duties is, of course, an example…. The proactivity element turns on a self-assessment process….” Schneyer discusses at length the successful use of proactive management-based regulation by lawyers in Australia and suggests its use in the United States. What I find intriguing in the adop- tion of this rule is that Illinois, after lagging in the adoption of mandatory continuing legal education, has taken the lead in using this novel form of regula- tion of lawyers. We will soon see if it is successful. The CBA has a variety of meeting rooms and can provide catering and audio/visual services for client conferences, firmmeetings, social gather- ings etc. Call Michele Spodarek, CBA Conference Center Manager at 312/554-2124 for details.

John Levin is the retired Assis- tant General Counsel of GATX Corporation and a member of the CBARecord Editorial Board.

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