Abstract
In the face of an economic downturn, more litigants are attempting to handle family law actions without representation and the consequences could be disastrous for them. Although some legal aid is available, more pro bono services are needed, and many family lawyers who would otherwise volunteer do not do so because they fear becoming defendants in a legal malpractice suit. Most prospective volunteers do not have the right malpractice insurance and are not covered by current state or federal law. This Note proposes that all states recognize the increasing malpractice exposure risk for family lawyers and incentivize them to volunteer by implementing statewide programs that provide free malpractice insurance for volunteer family lawyers modeled after existing programs in Missouri and Texas. Such programs would recognize that volunteer attorneys are doing a good deed, but also protect every client's right to adequate legal representation, by preserving their right to sue for malpractice. Key Points for the Family Court Community More litigants in family court actions are deciding to represent themselves due to their inability to pay market rates for legal services. Although some legal aid is available, more pro bono services are needed. Many family lawyers do not volunteer due to fear of being sued for malpractice. A state‐implemented malpractice insurance plan for volunteer family lawyers would be a low‐cost program that would minimize attorney fears, create incentives to volunteer, and serve as an effective solution to the increasing rate of self‐represented litigants in family court actions.
Published Version
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