THURMAN'S INSIDER'S TIPS:
Duty of Divorce Lawyers to Disclose Malpratice Insurance Coverage
Divorce and family law attorneys are not required to maintain malpractice
insurance, but if they don't have it they are required to state this
in their retainer fee agreements. Whenver fees to be earned by a lawyer
exceed $1,000, a written agreement is required by Business and Professions Code
section 6148. The penalty for failing to make this disclosure is that they attorney
is only entitled to earn a "reasonable fee" instead of the amount
that you agreed to pay on an hourly basis.
As a practical matter, those numbers may be the same (i.e., the agreed
upon hourly rate is a reasonable fee). If the attorney is a certified
family law specialist, you won't get much traction with this argument.
If the family lawyer you used really doesn't have much experience
in that practice area, their failure to have disclosed the lack of malpractice
insurance may assist you in recovering some of the monies you paid or
in avoiding paying anything further!
Rules of Professional Conduct
Rule 3-410 Disclosure of Professional Liability Insurance
(A) A member who knows or should know that he or she does not have professional
liability insurance shall inform a client in writing, at the time of the
client's engagement of the member, that the member does not have professional
liability insurance whenever it is reasonably foreseeable that the total
amount of the member's legal representation of the client in the matter
will exceed four hours.
(B) If a member does not provide the notice required under paragraph (A)
at the time of a client's engagement of the member, and the member
subsequently knows or should know that he or she no longer has professional
liability insurance during the representation of the client, the member
shall inform the client in writing within thirty days of the date that
the member knows or should know that he or she no longer has professional
(C) If a member does not have sufficient learning and skill when the legal
service is undertaken, the member may nonetheless perform such services
competently by 1) associating with or, where appropriate, professionally
consulting another lawyer reasonably believed to be competent, or 2) by
acquiring sufficient learning and skill before performance is required.
(D) This rule does not apply to legal services rendered in an emergency
to avoid foreseeable prejudice to the rights or interests of the client.
(E) This rule does not apply where the member has previously advised the
client under Paragraph (A) or (B) that the member does not have professional