A.Review of recent media coverage regarding handling of 1994 PLF malpractice claim

Mr. Rew reviewed the extensive media coverage over the past week about the handling of the 1994 PLF malpractice claim and its background. The purpose of the meeting was to consider how to address the concerns of the members of the bar and the public. He presented recommendations that included a PLF vision statement proposed by a member of the bar, continued compliance with policies established in 1997, and the following: (1) An independent review of PLF trial strategies by the American College of Trial Lawyers and (2) to charge the Professionalism Commission with disseminating the Statement of Professionalism to bar leaders. Mr. Rew described numerous written correspondence, e-mail messages and phone calls he has received from members of the bar expressing their concern and frustration with the matter.

Mr. Rew indicated that various newspaper articles have reported the use of a particular strategy in a particular case and the suspension of attorney John Davenport for misconduct in connection with that matter. He discussed action in 1997 by the PLF Board of Directors (BOD) and the BOG changing PLF policies to shift oversight of PLF claims strategy to the BOD to eliminate the Excess Committee, and to direct that the criticized claims strategy would not be used in the future. In 1999 the bar president appointed a BOG member to attend each PLF BOD meeting.

In the lengthy discussion that ensued, comments included the following: (1) Calls from members fell into two main questions, 'How could the PLF go so wrong?' and, 'Isn’t it a shame that the PLF has done so much good work and the public is only hearing this?' (2) It’s a bigger problem than the American College of Trial Lawyers can resolve - it’s an institutional problem. (3) A joint BOG/PLF oversight committee should be established to focus on policies and procedures to protect the public and properly defend bar members. (4) Mr. Hall was heavily involved and needs to publicly apologize. (5) The BOG recommendations have been shared with Mr. Hall and the PLF Board. They concur. (6) There is an inherent conflict with the PLF trying to defend attorneys and protect the public at the same time. (7) Disciplinary Rules and the Code of Professionalism define the line to resolve that conflict. (8) How does the PLF come to understand that it is a public corporation, not a private insurance company? (9) It’s not easy to get information out about the public good provided by the PLF, e.g., the importance of coverage for practicing lawyers, low malpractice insurance rates that keep attorney fees lower than they would be otherwise, the benefits of loss prevention services, etc.

In regard to communications from bar members, the following was discussed: (1) The importance of the overlay of public protection with good malpractice coverage. (2) The PLF’s high quality insurance is not available through other insurers. (3) If insurance were optional, some attorneys would not be covered. The OSB would look like the California State Bar.

Mr. Harnden recommended that the timeline for ACTL study should be two-three months.

B.Joint Meeting of the Professional Liability Board and the Board of Governors

The PLF Board and Mr. Hall joined the BOG meeting to further discuss the handling of the Pearce claim matter and its recent media publicity. Introductions were made and Mr. Rew reviewed the action taken by the BOG in agenda item 1.A.

The following was discussed: (1) Current problems relating to the inactivity of the Professionalism Commission need to be resolved. (2) It’s not clear whether a fundamental understanding exists within the PLF of the bar’s mission, its values, its commitment to professionalism and the dual role of responsibility to members and the public. (3) What will the PLF do to rebuild confidence with all parties? How will it be done as partners with the BOG?

Mr. Peachey spoke to the PLF’s commitment to professionalism and the BOD’s support of the BOG’s action for outside review of the PLF claims process. He indicated that the PLF has also embarked on an internal review.

Mr. Hall emphasized that the PLF took immediate action to deal with the problem with the assistance of the BOG and the BOD. He described the matter as an aberration and requested ongoing support from both boards to identify other problem areas where the PLF might be criticized. Mr. Hall indicated that the PLF staff is feeling somewhat uncertain as to the best way to proceed with its work.

Discussion continued as follows: (1) It’s unfair to refer to the matter as an aberration. What’s needed is for Mr. Hall to make a public apology. (2) Standards are in the process of being redefined and the tough issues will be addressed jointly at all levels – cultural, procedural, decision-making, professional, etc. (3) PLF needs to work on improved communications and should use bar resources such as public affairs and the communications staff regarding news releases and media coverage. (4) Let’s not turn this into a public relations issue.

Mr. Peachey explained, in regard to public relations and apologies, there was no forum at the time to say it was wrong. The PLF knew it was wrong and made specific changes, and is now living by some very principled decisions. He expressed regret that the PLF did not have an avenue for public apology because of its unique relationship with the bar and the BOG. He thanked Mr. Rew and Mr. Harnden for doing so. Mr. Bannon described how profoundly this matter has impacted Mr. Hall and the PLF staff and how sincere and open they have been to resolving the problems.

A discussion ensued about mutual development of a mission statement for the PLF. Mr. Harnden suggested that Ms. Cohen might head up this effort. Further discussion of this topic was left to a future meeting of the Board of Governors.