Competence & Malpractice · 6-12% of the exam
12.3.3Malpractice Insurance
Why
Requiring coverage would price some lawyers out of practice, particularly solos serving clients who can least afford to lose them. The Model Rules leave that trade-off between client protection and access to legal services to the states, which is why this topic appears as a boundary on ABA authority rather than as a duty.
Plain English
Malpractice insurance is not required under the ABA Model Rules, and that matches the majority position among the states. Some states require a lawyer to disclose uninsured status to clients, but no ABA Model Rule mandates coverage itself. Practicing without insurance may be poor risk management; by itself it is not an ABA-rule violation.
Malpractice insurance: ABA position
Three points, and the third turns to state law:
- Malpractice insurance is not required under the ABA Model Rules
- This reflects the majority rule among U.S. states
- Some states require lawyers to disclose their uninsured status to clients, but no ABA Model Rule mandates coverage itself
Example 1
Ex. 1
Dan had run a solo immigration practice for four years without malpractice insurance. No client had filed a complaint. His state had no statute requiring lawyers to disclose their insurance status to clients. A routine bar audit reviewed his practice profile and flagged the absence of coverage. The auditor raised the question of whether operating without insurance was itself a disciplinary violation under the ABA Model Rules.
It is not. The ABA Model Rules impose no obligation to carry malpractice insurance. Dan's choice to forgo coverage may reflect poor risk management, but it doesn't violate the rules. It can't be the basis for ABA-rule discipline. Any state-level disclosure obligations would be analyzed separately under that state's rules. Point at the Model Rule the auditor would charge Dan under; there isn't one.
Trap