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PA Bulletin, Doc. No. 05-1474

THE COURTS

Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

[204 PA. CODE CH. 81]

Amendments to the Pennsylvania Rules of Professional Conduct Relating to Disclosure of Malpractice Insurance

[35 Pa.B. 4300]

   Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Pennsylvania Supreme Court that it amend the Pennsylvania Rules of Professional Conduct to add a new Rule 1.4(c), as set forth in Annex A, requiring disclosure to clients when a lawyer does not maintain malpractice insurance with a specified minimum level of coverage.

   The existing Rules of Professional Conduct do not require any disclosure to clients regarding malpractice insurance carried by lawyers. The Board believes that it would be beneficial to clients for their lawyer to notify them if the lawyer does not carry malpractice insurance with a specified minimum level of coverage. Lawyers would also be required to notify their clients if their malpractice insurance drops below the stated minimums or is terminated. Alaska, New Hampshire, Ohio, and South Dakota have rules requiring disclosure of the type being proposed by the Board. The American Bar Association has also adopted a Model Court Rule on Insurance Disclosure.

   Interested persons are invited to submit written comments regarding proposed Pa.R.P.C. 1.4(c) to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, First Floor, Two Lemoyne Drive, Lemoyne, PA 17043, on or before September 30, 2005.

By The Disciplinary Board of the Supreme Court of Pennsylvania

ELAINE M. BIXLER,   
Secretary of the Board

Annex A

TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

Subpart A. PROFESSIONAL RESPONSIBILITY

CHAPTER 81. RULES OF PROFESSIONAL CONDUCT

Subchapter A. RULES OF PROFESSIONAL CONDUCT

§ 81.4. Rules of Professional Conduct.

   The following are the Rules of Professional Conduct:

CLIENT-LAWYER RELATIONSHIP

Rule 1.4. Communication.

*      *      *      *      *

   (c)  A lawyer shall inform a new client in writing if the lawyer does not have malpractice insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year and shall inform existing clients in writing at any time the lawyer's malpractice insurance drops below either of those amounts or the lawyer's malpractice insurance is terminated. A lawyer shall maintain a record of these disclosures for six years after the termination of the representation of a client.

Comment:

*      *      *      *      *

Disclosures Regarding Insurance

   (8)  Paragraph (c) does not apply to lawyers in government practice or lawyers employed as in-house counsel.

   (9)  Lawyers may use the following language in making the disclosures required by this rule:

   (i)  No insurance or insurance below required amounts when retained: ''Pennsylvania Rule of Professional Conduct 1.4(c) requires that you, as the client, be informed in writing if a lawyer does not have malpractice insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year and if, at any time, a lawyer's malpractice insurance drops below either of those amounts or a lawyer's malpractice insurance coverage is terminated. You are therefore advised that (name of attorney or firm) does not have malpractice insurance coverage of at least $100,000 per occurrence and $300,000 in the aggregate per year.''

   (ii)  Insurance drops below required amounts: ''Pennsylvania Rule of Professional Conduct 1.4(c) requires that you, as the client, be informed in writing if a lawyer does not have malpractice insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year and if, at any time, a lawyer's malpractice insurance drops below either of those amounts or a lawyer's malpractice insurance coverage is terminated. You are therefore advised that (name of attorney or firm)'s malpractice insurance dropped below at least $100,000 per occurrence and $300,000 in the aggregate per year as of (date).''

   (iii)  Insurance terminated: ''Pennsylvania Rule of Professional Conduct 1.4(c) requires that you, as the client, be informed in writing if a lawyer does not have malpractice insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year and if, at any time, a lawyer's malpractice insurance drops below either of those amounts or a lawyer's malpractice insurance coverage is terminated. You are therefore advised that (name of attorney or firm)'s malpractice insurance has been terminated as of (date).''

[Pa.B. Doc. No. 05-1474. Filed for public inspection August 5, 2005, 9:00 a.m.]


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