Letters to the Editor

INSURANCE DISCLOSURE WILL HURT LAWYERS

Thank you for your recent article on the issue of the State Bar’s insistence on mandatory attorney disclosure to the client regarding one’s existence (or nonexistence) of malpractice insurance ["Bar still wants insurance disclosure rule," April 23]. It is interesting to note that, previously, some 78 percent of those Bar members that commented on the subject commented negatively. Yet Mr. Towery and his grand, albeit sadly misguided, task force persevered. (“But we want them to know that the task force has been listening and has made some changes that make the proposal better.”) Oh, right … listening to whom, Mr. Towery?

Unfortunately, Mr. Towery and his “task force” are a prime example of why a majority of the attorneys of the State Bar believe the State Bar is a truly horrible institution, one that needs to have all of its funding cut off again in order to once more bring it back to reality. In this respect, we all recognize that when the State Bar is broke, at least it can’t go around hurting innocent lawyers. But as soon as the State Bar and task forces like Mr. Towery’s have 10 bucks in their grubby little hands, they begin to regulate how and when an attorney is to make a “disclosure” regarding the existence or nonexistence of malpractice coverage, boldly invading the attorney-client relationship without a care in the world as to how this will affect solo and small law firms. Of course, why should they? Indeed, Mr. Towery hails from a large San Jose law firm, whereas Bar governor James Scharf comes out of the San Jose U.S. attorney’s office � obviously, neither one of them cares a hoot about others who are not of their ilk.

Indeed, not only is the task force hopelessly misguided on this subject, but when Bar governors such as James Scharf spout out: “Our ultimate mission is to protect the public. We’re not really meant to be a trade organization, and I would think the public � in deciding who to retain � should have information that helps them make good decisions.” The obvious question arises: How would Mr. Scharf know anything about informing prospective clients about “making good decisions”? Admitted to the California Bar in 1991, Mr. Scharf previously was in-house counsel for the California State Automobile Association and is now with the U.S. attorney’s office. As such, he has always had one client � either a corporation or the U.S. Gooberment. He’s never as much as once interviewed a prospective client. Furthermore, he would be in the exempt category under the task force’s proposed rule.

Additionally, and equally as repulsive, is the fact that Mr. Towery proudly announces on the Hoge, Fenton Web site � www.hogefenton.com/towery.html � that he practices in the area of legal malpractice (“with an emphasis on professional liability and business litigation”), that he serves as the firm’s “ethics and risk management partner,” and that he “also specializes in matters relating to legal ethics. He serves as adjunct professor of professional responsibility at Lincoln Law School in San Jose. He is a former chair of the State Bar Discipline Committee, and has spoken and written widely on issues relating to legal ethics, the attorney-client relationship and attorneys’ fees. Mr. Towery serves as counsel to lawyers and law firms, and has served frequently as an expert witness, regarding ethics issues.”

Thus, if, as it is indicated above, Mr. Towery regularly practices in the area of legal malpractice, and whether as counsel for the plaintiff or the defendant, or as an “expert witness,” wouldn’t that constitute a conflict in terms of how he represents the State Bar and the “task force”? Doesn’t it appear that a person in Mr. Towery’s position would obviously want to arm-twist attorneys into buying malpractice coverage in order that more attorneys will hopefully be sued (and regardless of the merits of any such suit) so that he and his firm’s business will grow? It certainly appears that way to the undersigned. Hence, doesn’t Mr. Towery have a glaring conflict here? I believe so. And, yet, Mr. Towery proudly boasts that he is “expert” as to ethics issues. Go figure!

The bottom line is that the overwhelming majority of the Bar’s membership is strongly against any rule that would require such mandatory disclosure as to the existence or nonexistence of malpractice coverage. This is clearly a “lose-lose” situation. And, since we’ve survived quite well here in California for over 150 years without such a rule, coupled with the obvious fact that a client is always free to inquire of the attorney whether or not he or she carries malpractice coverage, I respectfully submit that the rule should be summarily dumped by the task force.

William Mayo
Chico

DORFMAN’S SKILLS ARE IMPRESSIVE

I agree with the assessment of Harry Dorfman as an excellent, gentlemanly prosecutor ["Born to Perform," April 20]. I witnessed Mr. Dorfman’s courtroom skills (albeit from the other side of the bar) when I was called for jury duty for the [murder of former Secretary of State Bruce McPherson's son]. The jury pool was staggeringly huge, yet many potential jurors (myself included) were impressed with Mr. Dorfman’s ability to coolly recall from memory every potential juror’s name and key information from the jury questionnaires.

Although Mr. Dorfman did exercise a peremptory challenge against me (no doubt due to my then-employment with the Ninth Circuit), and I was thus denied a ringside seat for the trial, I was not surprised to learn that he eventually secured a conviction. I am surprised, however, to have learned that he once played Captain von Trapp; he was far too young for the part right out of law school!

Eric O’Kelly
San FranciscoM