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65 Fordham L. Rev. 209 (1996-1997)
Professional Liability Insurers as Regulators of Law Practice

handle is hein.journals/flr65 and id is 227 raw text is: PROFESSIONAL LIABILITY INSURERS AS REGULATORS OF LAW PRACTICE Anthony E. Davis* INTRODUCTION T HIS Article addresses the extent to which professional liability in- surance carriers (Insurers) can, or should, serve as informal reg- ulators of their insureds. There are two threshold matters, however, which must be confronted in seeking answers to those questions. First, we must assess the extent to which Insurers have acted, or cur- rently act, as regulators of the profession, or actively try to do so. Sec- ond, we must recognize that the designation of Insurers as informal regulators itself may be misplaced. Part I of this Article addresses whether Insurers should be recog- nized as formal rather than informal regulators of conduct. Part II surveys the scope of regulation which has been attempted by Insurers to date and attempts to assess its efficacy. Part III suggests additional forms of regulation from Insurers which I believe are imminent or which should be anticipated in the future. Finally, part IV addresses the fundamental policy question raised in this Article: What is the degree to which Insurers should be permitted to perform and-if I am correct in my analysis-expand this regulatory function?' * The author is a partner in Fox & Horan, New York, and an adjunct professor of law at Brooklyn Law School and the Benjamin N. Cardozo School of LawlYeshiva University. He is also the author of Risk Management Survival Tools for Law Firms (1995). 1. At this juncture, one further preliminary matter must be expressed. I wish to acknowledge the assistance of a number of the leading domestic commercial profes- sional liability insurers and insurance brokers for providing me with both past and current policy language, and in several instances also for engaging in extensive discus- sions about their perceptions of themselves as regulators of their insureds. In recogni- tion of their proprietary rights in the context of an industry which is highly competitive, however, and where even comparison charts of various policy provisions prepared by brokers are products perceived as having significant commercial value, I have agreed to use their policy provisions and refer to all conversations with them anonymously. Rather than referring to some with, and others without, attribution, I have decided further that it would be preferable to treat all such references anony- mously. I trust that those who know me will attest to those who do not that this rule of anonymity of source should be taken as confirming, rather than detracting from, the authenticity of the material. Since this Article is about what are essentially policy issues, rather than a comparison or critique of particular approaches to given problems, I trust that the reader will agree that there is no harm in protecting per- ceived commercial interests in this way, particularly if the result is to enable a broader and more complete review of the issues.

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