f/k/a archives . . . real opinions & real haiku

January 14, 2004

Ban on Malpractice Gag Clauses Is Good Policy

Filed under: pre-06-2006 — David Giacalone @ 11:00 pm

A bill that would prohibit “gag clauses” that forbid reports to the professional regulatory body in malpractice settlements has passed a key California legislative committee unanimously, according to an article in The Recorder(The Recorder/Law.com, “Malpractice Settlement Bill Clears Key Calif. Panel,” by Jeff Chorney, 01-15-2004).  A thorough explanation of the bill, AB 320, is contained in the Legislative Bill Analysis, available here.


The Recorder article notes that:

The bill’s author, Assemblyman Lou Correa, D-Santa Ana, Calif., said regulators are often stymied in their attempts to discipline professionals who commit egregious errors or have a history of screwing up. To protect other consumers, Correa believes people who file suits should be able to tell their stories to regulators without fearing they’d lose their settlements.

handshake  It is difficult to conceive of a good reason to oppose this bill, which is modeled after existing California restrictions on attorney malpractice settlements.   This bill covers any profession regulated by the California Department of Consumer affairs, including all health care fields, accountants, and many others.  It would not bar other types of gag clauses in a malpractice settlement, such as those barring talking to the press.   The Bill had no opposition in the Committee.  Nonetheless, some observers fear opposition in the broader Legislature, because “tort reformers and insurance interests are wary of just about anything supported by the plaintiffs bar.”


Sheesh.  I’m often unhappy with the plaintiff bar’s position on contingency fees, but I refuse to believe that everything it does is suspect.  Indeed, far more worrisome to me is this perspective from the defense bar (as quoted in the Recorder article):

But Richard Carroll of Long Beach’s Carroll, Kelly, Trotter, Franzen & McKenna, which exclusively does medical malpractice defense, warned of an increase in cases going to trial if Correa’s bill passes. Carroll said provisions against talking to regulators are an important incentive for doctors to sign settlements.

Taking that incentive off the table seems like a risk the public should take in order to assure better regulatory processes and consumer protection.  All I have to say is: Can’t we all just get along for the public’s sake (for a change)?

  • Having just defended the integrity of the plaintiff’s bar on this topic, I do have to say that I still smile when I see their chosen sobriquet — “Consumer Attorneys of California.”  Reminds one of the bar association ULP committees that now call themselves “Consumer Protection Committees.”   A rose by any other name . . . .
  • I wonder if the bar should change its own rules, and prohibit an attorney from seeking such gag clauses in any malpractice settlement agreement, relating to any licensed profession, not just in lawyer malpractice cases.

NY Bar Says Accessibility Is Its Prime Legislative Focus

Filed under: pre-06-2006 — David Giacalone @ 12:55 pm

power plug

empower consumers


In a press release issued yesterday, New York State Bar Association (NYSBA) President President A. Thomas Levin announced the group’s legislative agenda for 2004, which includes a strong emphasis on access to the judicial system.  Levin stated:

“We can no longer afford to put off legislative remedies in areas that have for too long been neglected. Nor should we imperil Constitutional guarantees in the name of expediency.  Access to our criminal and civil justice system is fundamental for every American. As custodians of those rights, the legal profession must continue to be vigilant, to ensure that they are not eroded.”

In addition to reforming the strict sentences enshrined in the Rockefeller Drug Laws and seeking a “fair and ethical process” for selecting judges, the NYSBA declared itself committed to the following legislative priorities:

“Access to the Tort System. Protect access to the court system for injured persons to exercise their right to seek compensation for their injuries. Encourage continued study of, and reasoned debate about, the tort laws of New York based upon the understanding that such activities will lead to practical, responsible, and beneficial change that is fair to all New Yorkers.”

Editor’s Note:  We’ll need a lot more open-mindedness on both sides of the tort-reform debate to achieve this.  Keeping the interests of the injured person as the primary focus is crucial — even when it means making contingency fees fair to each client in each case.

“Access to the Civil Justice System/Funding for Civil Legal Services for the Poor. Advocate for access to the civil justice system by low-income people. While the pro bono efforts of New York lawyers help provide needed representation, adequate state and federal funding is necessary.”

Editor’s Note: Let’s make sure that ample funding is available finally to create self-help centers at courts and online.  As we’ve argued, self-help will reach and empower far more people than pro bono or legal services ever could.

“Access to Legal Services for Middle-Income Consumers (Simplified Case Resolution). This proposal by the Association is intended to assist a growing segment of middle-income New Yorkers, who are denied access to the civil justice system because claims cannot be litigated at a cost reasonably comparable to the amount in dispute. This alternative mechanism, functioning within the judicial system, would permit limited disclosure and waiver of jury trial and provide disposition by a judge within one year.”

Editor’s Note: If done right, this could be an important initiative.  However, Simplified Case Resolution cannot merely be set up so as to preserve work for lawyers within the judicial system.  Like the poor, middle-income consumers deserve to have the benefits of Small Claims Reform ( see here and there) and meaningful self-help and pro se programs   NYS should blush when it sees how far behind it is compared to states like California. I’m afraid, however, that some bar leaders think that blocking self-help is their job.

“Court Restructuring. Amend the New York State Constitution in order to restructure and simplify our costly, confusing, and inefficient trial court system, and thereby make the courts more accessible to the public and practitioners.”

I hope the NYBA, which up until now couldn’t even bother to support increasing dollar limits in small claims courts or funding self-help efforts, is serious about making accessibility its top priority.

Do-It-Yourself Law Panel at ABA Midyear Meeting in San Antonio

Filed under: pre-06-2006 — David Giacalone @ 12:30 am

Marc Lauritsen of elawyerblog announced yesterday that he and a “group of e-legal activists” (Richard Granat, Neil Ruther, Alan S. Kopit, Will Hornsby, Aman Bagga, Ron Staudt) will present a session on “Do It Yourself Law on the Internet vs. Us The Lawyers,” at the ABA midyear meeting in San Antonio.
Here’s the course description, as found in the midyear meeting program:

Do It Yourself Law on the Internet vs. Us, the Lawyers

Friday, Feb. 6, 2004: 3:15 p.m. – 5:15 p.m.
Why bother with a law firm if you can get all the divorce papers, wills or other consumer legal services over the Internet? The emergence of legal service websites that claim 10, 20, even 30,000 transactions are already having an impact on the legal profession. Smart lawyers are developing competitive but lawyer-run sites that tap a whole new market for legal services. The ABA House of Delegates just passed a set of Best Practice Guidelines for Consumer Legal Web sites. How do the current crop of lawyer, non-lawyer, and anti-lawyer web sites stack up against the Guidelines? And how can your firm leverage the lessons of these pioneers?


Aman Bagga, Ernst & Young
Richard GranatMylawyer.com
William Hornsby, American Bar Association
Blair Janis, Ballard, Spahr, Andrews & Ingersoll
James Keane, Jkeane.Law.Pro
Marc Lauritsen, Capstone Practice Systems
Ronald Staudt, Chicago Kent College of Law

ethicalEsq would love to attend, given our interest in containing the definition of the Practice of Law and promoting Self-Help & Pro Se Law.  However, we don’t know the way to San Anton’.

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