March 10, 1999

In attendance were Christopher M. Buckman, Jerre Dixon, Heather Burkham, John Phillips, John Palmeri, Dave Little, Michael Canges, Walter Houghtaling, Daniel McCune, Pat LeHouillier, Gary Abrams, Chris Little, Reba Nance, and Michael Mihm.

John Phillips reported on the Committee's program regarding the Restatement (3rd) of Law Governing Lawyers to be put on at the CBA convention this fall. The Committee has been allotted 3 1/2 hours beginning at 8:30 a.m on Saturday. We may consider having break-out sessions and we may even bring a speaker in from out of town. Mr. Phillips reported that David Little, Michael Mihm, and John Palmeri have agreed to assist with the program and speakers. Mr. Phillips will also call Ted Fiflis of the University of Colorado Law School, to see if Mr. Fiflis is willing to participate. We will also seek participation from the Trusts and Estates lawyers, as the new Restatement will affect that area of practice significantly. Mr. Phillips will have a proposed agenda for the program at the Committee meeting in April.

Dave Little reported on the Young Lawyers' Program. Gary Abram is putting together a Curriculum Committee. The thought, at this point, is that we will have a 3-5 day program using consecutive days. The Massachusetts Bar Association has created a similar program. Mr. Little will attempt to obtain the materials from the Massachusetts program to see what there is that we can use. Mr. Little has copies of Professor Rogers' materials from the Campbell School of Law, which runs an intensive program of a similar nature. The Curriculum Committee may meet in early April.

Heather Burkham reported on the next "Whoops" issue. The article has been written and Jerry Dixon agreed to act as editor for the article.

Chris Buckman reported on developments at Westport. There has been positive feedback to Westport's reductions of the base rate premium. The $25 coupons distributed to participants in the malpractice prevention seminars for CLE in Colorado publications are starting to be redeemed.

The Committee discussed Michael Canges' concerns regarding due process afforded to lawyers who have had claims and are at risk for having their malpractice coverage nonrenewed. The Committee discussed at length the possible means by which lawyers may be protected. Mr. Buckman reported on the internal procedures at Westport and Sedgewick James. Mr. Buckman reported that the non-renewal rate is approximately 1.2% over the last five years. Mr. Mihm suggested that the Committee appoint an ombudsman if it appears that non-renewals become a problem.

The members of the Committee are not aware of any recent published legal malpractice decisions.

The Committee discussed the issue of whether arbitration agreements within fee agreements may be applied to malpractice claims or disputes other than fee disputes. The recent case law seems to be that the arbitration provisions apply only to fee disputes, and do not apply to malpractice claims. Mr. Buckman pointed out that Westport discouraged such arbitration clauses in fee agreements, as it may affect coverage and may affect the malpractice carrier's ability to defend the lawyer if there is a malpractice claim. Mr. Buckman reported that Westport and Sedgewick James' experience is that lawyers sued in malpractice claims obtain better results with jury trials than they do with arbitration or mediation. Several members of the Committee who defend lawyers remarked that that has been their experience as well.

Reba Nance reported that she has received a number of requests for sample fee agreements. The Committee discussed whether there should be a handbook of some sort that can be distributed to lawyers. There may be a number of sample fee agreements in the new Attorney Professional Liability Handbook now being published by CLE in Colorado, Inc.

There being no further business, the Committee adjourned.

Minutes by Michael T. Mihm