Kenneth Bryant Hodges III of Ken Hodges Law, Atlanta (Photo: Rebecca Breyer/ALM)

For years, Georgia attorneys specializing in legal malpractice cases have complained that too many of their fellow lawyers are placing themselves and their clients at risk by failing to maintain professional liability insurance.

Georgia is one of several states with no requirement that lawyers carry insurance or disclose that fact to the public. Now, the State Bar of Georgia is taking steps toward understanding how pervasive the problem is, with a a study committee of more than a dozen lawyers from around the state set to meet Monday to take up the issue.    

Bar President Ken Hodges said malpractice lawyers reporting that the problem was relatively pervasive in Georgia spurred him to call for the creation of a committee that ultimately will present its finding to the bar's Board of Governors.

“I don't know how many lawyers have [malpractice insurance] or don't,” said Hodges. “But we are a self-regulating profession, and, if we don't enact rules and rules and procedures to protect the public, we're not doing our job.”

“Personally, I think not carrying it is irresponsible, and I can't imagine practicing law without it,” noted Hodges, who has just shuttered his own firm, Ken Hodges Law, as he prepares to be sworn in as a judge on the state Court of Appeals later this month. “At a minimum, I think lawyers need to disclose whether they're carrying insurance or not, so people can decide whether they want to hire them.”

According to the American Bar Association, as of 2018, more than a dozen states, including Georgia, do not require insurance or any sort of disclosure to the public or the state bar associations. Several states require that lawyers disclose whether they carry insurance to the bar and/or to clients, and some post that information on their state bar websites. Only Idaho and Oregon require that private attorneys carry malpractice insurance.

Linley Jones Firm principal Linley Jones, a member of the subcommittee who has won judgments against lawyers who lacked the resources to pay them, has been advocating for years to have the bar address the issue.

“There is a general agreement that there is a problem with uninsured lawyers and that something needs to be done,” she said, although attempts to remedy the situation have gone nowhere.

“My general impression, as a result of my 20-plus year effort to encourage the state bar to take steps to help the victims of uninsured lawyers, is that such efforts have not been well received,”  Jones said. She also noted that the committee wants to push forward, now that the subject is on the table.

“We've had one meeting, a general discussion about the initial topic. Now we need to move,” Jones added. “We're on an aggressive schedule to get something to the Board of Governors by the time for their spring meeting.”

Other members of the committee include state bar General Counsel Paula Frederick and Deputy GCs Bill NeSmith and Jenny Mittelman, along with Ellis, Painter, Ratterree & Adams partner Sarah Akins; Georgia Trial Lawyers Association director of political affairs Bill Clark; Naggiar & Sarif attorney William Davis; Hall Booth Smith partner Michael Frick; Warren Hinds P.C. principal Warren Hinds; Lefkowitz Firm principal David Lefkowitz; Hawkins Parnell & Young partner Christine Mast; Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet partner Bill Mitchell; Carlock Copeland & Stair partner Shannon Sprinkle and Werdesheim Law Firm principal Pete Werdesheim.

Hodges said that, in his conversations with lawyers, he's never heard any sound rationale for a lawyer not to carry malpractice coverage.

“The only argument I've ever heard is, 'I can't afford it,' which I don't think is a good argument,” he said. “It cost me about $3,500 a year for my whole office at Ken Hodges Law, and that's not much to ensure that my clients are protected if somebody makes a mistake.”

“Of course it's in the lawyers' interest, too,” Hodges added. “If a lawyer gets hit with claim, he or she should not represent themselves; they need to hire counsel. If a lawyer tells me me they don't have the money to spend on insurance, I say 'You'll spend a lot more on the time defending a malpractice claim that you could have generated on your practice.'”