CRPC Rule 3-410 - 'Disclosure of Malpractice Insurance'


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 liability insurance.
(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 liability insurance.

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