Ten months ago\nI wrote about Lawyers’ Professional Liability Insurance and came to a conclusion\nthat in a way as it is being currently used and contracted, users of legal\nservices will not certainly have any benefits from the same. Unfortunately, the\npractice has shown the correctness of such a conclusion.<\/p>\n\n\n\n
During\n2016, none of the insurance companies dealing with this type of insurance in\nthe Republic of Srpska received claims for damages or any other claim of\ndamaged users of legal services. Either our lawyers are unmistakable or is it\nsomething else in question? <\/p>\n\n\n\n
There are two\nreasons for this. Firstly, I believe that the users of legal services are not\nsufficiently informed about the right to compensate damages made by their\nlawyers. Secondly, the special conditions of insurance companies that regulate\nthis type of insurance are set so rigorously that a practically insured event\n(with some exceptions, for example failure to file an objection\nof obsolescence in civil proceedings) can never occur i.e. cannot be\ncreated the obligation of an insurance company to pay the damaged users of\nlegal services for the damages caused by their lawyers. To remind, most\ninsurance companies in the Republic of Srpska and the Federation of BiH,\ndealing with the professional liability insurance of lawyers, exclude from insurance\nall damages resulting from an intention of a lawyer or lawyer\u2019s gross\nnegligence. If we take as clear situations in which a lawyer deliberately\ncauses damage to his\/her client (although this will not always be the case), it\nremains unclear when some of the lawyers’ errors and omissions will be\nconsidered as gross, and when as ordinary negligence. If a lawyer fails to\ndeclare an appeal within the prescribed deadline or fails to attend a scheduled\nhearing, and therefore his\/her client suffers damage, does such an omission of\na lawyer will be considered as ordinary negligence or gross negligence? Should\nit be tolerated to the lawyer as should be tolerated to an ordinary person, or\na lawyer is still expected to organize his\/her work in the office i.e. law firm\nin a way to avoid such omissions? Answers to these questions can only be given\nby the jurisprudence, especially if it is noted\nthat insurance companies, in order to avoid paying damages, stand at the point\nof view that such omissions should be treated as a gross negligence.<\/p>\n\n\n\n
Professional\nliability Insurance of lawyers also covers damages resulting from a bad or\nwrong representation. However, when collecting such damages, clients will\nencounter the problem of proving not only that their lawyer represented them\nbadly, but also that the dispute or procedure would have a different outcome if\nthe lawyer represented him\/her in the proper manner. In most cases (other than\ndrastic ones, as previously mentioned, not declaring objection of obsolesce),\nit will be almost impossible to prove. Namely, in order to be successful in the\ncivil proceedings conducted for the purpose of collecting such damages, it is\nmost likely, that expert witnessing should prove that the outcome of the\ndispute would have been different if the lawyer properly had represented the\nclient. At this moment, there are no expert witnesses to give\nan expert opinion for such situations (I suppose that this should be a permanent court expert of legal\nprofession, not excluding that such expert opinions could be given by lawyers),\nnor could anyone claim that a court decision would be different if that proceeding\nwas conducted differently, except maybe the judge who adopted that particular\ndecision.<\/p>\n\n\n\n
Of course, now we face a question what to do to\nensure that a lawyer’s professional liability insurance makes sense to their\nclients as well. Firstly,\nthe users of legal services should be better informed, which, first and foremost,\nshould be the task of the bar association. Secondly, Law\non the Advocacy should be amended in order to ensure that the insurance\nof lawyers from professional liability also include both cases of ordinary negligence\nand gloss negligence. This will then\nlead to the change of special conditions of insurance companies for this type\nof insurance, and certainly will increase the premium and probably demands of\ninsurance companies for additional guarantees from lawyers, primarily those who are not liable with its entire property, therefore,\nlaw firms with limited liability. But those who cannot afford payment of premium for insurance from\nrepresentation in multi-million values of disputes, should not represent in\nsuch disputes, is it?<\/p>\n\n\n\n
Author: Aleksandar\nSajic<\/p>\n\n\n\n
E-mail:\naleksandar@afsajic.com<\/p>\n","protected":false},"excerpt":{"rendered":"
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