Today's life is unthinkable without the existence of lawyers. Every day, hundreds of trials are held throughout the country in which lawyers defend the interests and rights of their clients, both plaintiffs and defendants.

But defense lawyers are not always qualified enough, as a result of which their clients suffer losses. In order to ensure compensation incurred by the defense lawyer's client, the law introduced the practice of risk insurance professional responsibility.

Civil Code Russian Federation the imposition of the obligation of civil liability by a number of persons, including those engaged in advocacy, is envisaged.

The main law governing the professional practice of advocacy is federal law No. 320-FZ dated December 3, 2007.

According to article 19 of this document, a lawyer must insure the risks of his professional property, which arise in connection with the possibility of violation of the terms of the contract concluded between the lawyer and his client (principal).

The amount of liability and its nature should be spelled out in the contract for the provision of lawyer services, so that the client clearly understands what is within the competence of his defense attorney in charge of the case. Initially, in accordance with Law No. 320-FZ, it was planned to establish property liability insurance for lawyers without fail in order to provide additional protection for citizens seeking help from legal specialists from unscrupulous workers.

According to article 929 of the Civil Code of the Russian Federation, it is possible to insure the risks of obligations entailing damage to the property, health or life of the principal. In addition, the insurance of advocacy provides coverage for any other material costs incurred by the principal in the event of incompetent actions on the part of the lawyer of his choice.

General Provisions

A lawyer bears several types of responsibility

The legal profession provides for several types of responsibility that a lawyer bears to his client on the basis of an agreement concluded between them.

Depending on the violation committed, the lawyer is responsible:

1. civil law;
2. disciplinary.

In addition to the fact that a lawyer will be punished in accordance with applicable law (be it the Criminal, Civil or other Code), he will be responsible for improper performance of obligations to his client.

In order to insure the risks of your profession, you must have a legal basis. Law of the Russian Federation No. 4015-1 of November 27, 1992 on insurance in Russia states that for each specific type of compulsory insurance there must be its own federal law, which defines the following concepts:

• subject and object of insurance;
• a list of possible insured events (cases in which insurance payments are required);
• the minimum amount of the insured amount, the algorithm for its calculation;
• insurance rates;
• payment of insurance premium;
• insurance control, etc.

In order to insure the risk of a lawyer's liability, he needs to conclude an agreement in which the above points of insurance will be indicated in accordance with the specifics of his activities.

Even if the insurance contract is concluded in favor of a lawyer, that is, the direct insured, the client, the lawyer's client, receives the payment in the event of an insured event, since it is he who bears the losses.

Underwater rocks

Lawyer's liability risk insurance - an important aspect

Though compulsory insurance risk of professional liability of a lawyer - an important aspect of the client's confidence in protecting their interests, a legislative act regulating this direction, has not yet been adopted.

A few years after the entry into force of the law on advocacy, one of the State Duma deputies made a proposal to abolish compulsory liability insurance for advocacy.

This proposal was formed due to the fact that a number of obstacles stood in the way of the implementation of the provisions of Law No. 320-FZ, namely:

• Difficulties in accurately determining the object of insurance and insurance events.
• Establishing the relationship between the activities of a lawyer and the consequences that it entailed.
• Establishment of the minimum amount of insurance payments.
• Lack of consensus among insurance companies in determining the risks of professional liability of lawyers.

In this regard, after active debate, amendments were made to Law No. 320-FZ to abolish compulsory insurance of the risks of professional liability of lawyers until the moment when a federal law governing legal relations between lawyers and clients in this area is adopted and approved. But until now the legislation in this area has remained unchanged.

Lawyers voluntarily enter into voluntary insurance contracts in order to gain the client's trust and thereby raise their authority among associates, as well as benefit from the conclusion of more contracts for the provision of legal assistance. Many lawyers believe that it is not so necessary, especially when it is imposed "from above".

Attorneys at major law firms argue that a self-respecting lawyer or company will willingly agree to voluntary insurance to stay in good standing with your current and potential clients.

V foreign countries the practice of insurance against the risks of attorney's liability has been operating for several years already. Germany, Sweden, France, Poland and other European countries have introduced compulsory insurance. There is a voluntary insurance system in the United States, but it turns out to be a lot of lawsuits from clients filing for the actions of attorneys.

Lawyer's liability insurance is currently voluntary, although initially the legislature planned to introduce this procedure on a mandatory basis. The procedure itself is necessary to protect client-principals from violations of the agreement for the provision of lawyer services by lawyers.

Renowned lawyers voluntarily insure the risks of their professional liability in order to maintain their credibility among clients.

On the professional responsibility of a lawyer - in a video lecture:

Photo by the press service of the FPA RF

As early as 15 years ago, the obligation of lawyers to insure their professional property liability formally appeared in Russia. However, in 2007, parliamentarians decided that a special law should be developed for such a legal institution to function. The latter has not yet been developed. Pravo.ru experts explain why this happened and express their opinions on whether lawyers need such insurance.

In 2002, the adopted Federal Law "On advocacy and the legal profession in the Russian Federation" introduced the obligation of a professional defender to insure the risk of his work liability.

In accordance with paragraphs. 6 p. 1 of Art. 7 of the Federal Law of May 31, 2002 "On advocacy and the legal profession in the Russian Federation, a" lawyer "is obliged to insure the risk of his professional property liability."

This provision came into force on January 1, 2007. But already in May 2007, State Duma deputy Andrei Makarov came up with an initiative to cancel the introduction of compulsory "lawyer insurance" pending the adoption of an industry law that would regulate this issue. The parliamentarian explained his initiative by the fact that while trying to implement the mentioned provision in practice, "the lawyers' community, insurers and experts faced a large number of intractable internal and external problems."

The legal department of the State Duma then criticized Makarov's proposal. Parliamentary lawyers explained that it is illegal to suspend the provision of the law for an indefinite period: "Such an initiative suffers from a lack of reasonable stability. legal regulation because it does not contain a specific date until which the norm will not work. "

Nevertheless, in December 2007, Vladimir Putin approved the Makarov amendment, and the introduction of "lawyer insurance" was postponed until the adoption of an industry law. 10 years have passed since then, and no one has prepared a special normative act for the insurance of lawyers' liability.

Purpose of the initiative

Denis Puchkov, Managing Partner, says that the norms in the Law on the Bar, which have not yet worked, should have formed a high degree of confidence among Russians in the legal profession in general and lawyers in particular: "Such insurance would become a guarantee for the client in case he incurs losses through the fault of the lawyer."

According to Art. 19 of the Federal Law "On advocacy and the legal profession in the Russian Federation, a" lawyer "carries out, in accordance with federal law, insurance of the risk of his professional property liability for violation of the terms of the agreement on the provision of legal assistance concluded with the client."

Developing Puchkov's thought, Lawyer of JSB "Musaev & Partners" Alexey Golenko explains that professional liability insurance for a lawyer would make it easier to recover the amount of the fee in the event of possible errors of professional defense lawyers. Myself Golenko in practice, I was convinced that "lawyer's insurance" is still needed. One of his principals asked another lawyer to help with formalizing the inheritance at a notary. However, a professional defense attorney entrusted this task to his assistant, who did not cope with the work. The indignant client appealed against the actions of the negligent lawyer to the bar association. The latter stated violations in the work of the lawyer. After that, the client had to return in court his money, which he paid to an unqualified lawyer. Golenko considers it wrong that in order to return the funds, the principal has to turn to another lawyer and spend additional money on this. According to the expert, the decision of the bar association is already enough to return the funds to the defrauded client.

The obligation to insure the liability of lawyers can appear in two ways, believes Golenko:

1) The lawyer will conclude an insurance contract civil liability with an insurer who will have to be accredited by the FPA or the bar association of a constituent entity of the Russian Federation.

2) You can borrow insurance rules that are used by other specialists:

Notary (Article 18 of the Federal Law "On the Basics of Legislation on Notaries"),

Appraiser (Article 24.7 of the Federal Law "On appraisal activities in the Russian Federation"),

Cadastral engineer (article 29.2 of the Federal Law "On cadastral activities").

Overseas insurance

In many foreign countries the discussed initiative has been functioning for a long time. Kirill Belsky, attorney, partner, says that compulsory insurance exists in most European countries: Germany, France, Sweden, Ireland, Spain, Poland and the Czech Republic, the expert says. For example, in Germany the minimum sum insured is 250,000 euros.

"Lawyers should always be insured against claims related to lack of professional competence. The amount of insurance is determined within reasonable limits in relation to the risk of possible mistakes made by lawyers in the course of their professional activities."

At the same time, in the United States, professional liability insurance for lawyers is voluntary, the expert notes. According to him, in some states, bar associations create their own insurance companies or form special reserve funds at the expense of membership fees of colleagues to pay compensation to clients who have suffered from unfair legal practice.

In recent years, an increasing number of states ( approx. ed.-Alaska, South Dakota) enshrine in codes of ethics a rule that obliges a lawyer to disclose his insurance status to a client. Belsky also draws attention to the other side of the coin: "In the United States, clients all over the world file lawsuits against lawyers who have lost their case. Some American law firms share the cost of professional liability insurance that exceeds, for example, the cost of renting and maintaining an office."

"Lawyer insurance": why lawyers are against

Denis Saushkin, partner, I am sure that in the near future the discussed norms will be dead, unless a "lawyer's OSAGO" appears: "On it, insurers will earn their" kopeck "without incurring special expenses for payments." Eduard Olevinsky, head, believes it is basically a bad idea to impose insurance by law. The lawyer emphasizes that such a service is appropriate when the client himself benefits from high-quality protection. In his opinion, even without the establishment of such a duty, there is a great future for lawyers' liability insurance: "It saves lawyers from unnecessary hassle and increases the number of client companies willing to outsource legal services." Some state corporations already now agree to work only with those lawyers who have insured their professional responsibility. For example, the Deposit Insurance Agency, says the expert. Olevinsky's legal bureau has been insuring its liability for a long time, the lawyer says: "After all, this is the company's competitive advantage." At the same time, he complains that it is not easy to find a decent insurance company with adequate tariffs in Russia.

This type of voluntary insurance has been used by the company for more than five years. Mikhail Kurdzhev... Nevertheless, the lawyer agrees with his colleague that it is too early to make such requirements mandatory: "There are no clear rules for the provision of legal services, now anyone can provide them, and the insurer cannot determine the quality of such legal assistance." Puchkov points to another aspect: sometimes it is difficult to prove the causal relationship between the negative outcome of the dispute and the quality of the lawyer's services. And Art. 10 of the "Code of Professional Ethics of a Lawyer" completely prohibits promising a positive result to your client in any case. It is possible to prove that a lawyer's mistake led to the adoption of an incorrect judicial act, it is possible only on the basis of a court decision, believes Puchkov.

In the current conditions, forcing lawyers to insure the risk of their liability is an unreasonable overstated requirement for such activities, the expert is sure. Golenko adds that the introduction of "lawyer insurance" will increase the cost of legal assistance. In addition, the emergence of fraudulent schemes for obtaining insurance payments cannot be ruled out, the lawyer warns.

"Lawyer insurance" can also make it difficult for professional defenders to do their job. Receiving 550 rubles for a ship day, which the state often delays, a lawyer will have to spend a significant amount on his liability insurance, explains first vice president Of the Moscow Region Bar Association Mikhail Tolcheev:"In districts and regions where appointment work is a significant part of the legal profession, compulsory insurance will lead to defenders becoming a free app for the legal system." There are so many essential issues on the system of functioning of the institution under discussion that it is premature to introduce compulsory "lawyer's insurance" until they are resolved, Tolcheev is sure.

Consultants' opinion

The consultants interviewed by Pravo.ru also agree that one of the main problems in insuring the professional liability of a lawyer is the assessment of the damage he inflicted on the client. But within the framework of the current Russian law and law enforcement practice it is hardly possible considers Maria Mikheenkova, lawyer... She explains the difficulties of developing general criteria for assessing damage in disputable situations and asks the following questions: "How to determine the specific amount of the principal's loss - at the cost of the claim? But how to evaluate the results in those disputes where it is not about material, but about determining the order of use shared apartment or where the child lives? "

In Russia, there has never been a high risk of liability for low-quality legal services in practice, adds Victor Gerbutov, Ph.D. D., partner: “So first we must wait for the Russian courts to begin willingly recovering losses that were inflicted on their clients by the“ negligent ”lawyers. Then the real prerequisites for compulsory professional liability insurance of lawyers will appear, the expert is sure. Complementing their colleagues, former senior consultant, now a lawyer, Olga Leonova explains that consultants usually offer alternative options for their clients: "The clients themselves choose the option that is acceptable to themselves, taking into account all the legal risks described by the consultant." Thus, the consultant protects himself from potential lawsuits from a disgruntled client, sums up Leonova.

Article 18. Guarantees of the independence of a lawyer

1. Interference with advocacy, carried out in accordance with the law, or obstruction of this activity in any way is prohibited.

2. A lawyer cannot be held liable (including after the suspension or termination of the status of a lawyer) for the opinion expressed by him in the course of his advocacy, unless a court verdict that has entered into legal force establishes that the lawyer is guilty of a criminal act (inaction ).

These restrictions do not apply to the civil liability of an attorney to a client in accordance with this Federal Law.

3. It is not allowed to demand from lawyers, as well as from employees of lawyers' associations, bar chambers or the Federal Chamber of Lawyers, information related to the provision of legal assistance in specific cases.

4. The lawyer, his family members and their property are under the protection of the state. The internal affairs bodies are obliged to take the necessary measures to ensure the safety of the lawyer, his family members, and the safety of their property.

5. Criminal prosecution of a lawyer is carried out in compliance with the guarantees to the lawyer, provided for by the criminal procedure legislation.

Article 19. Insurance of the risk of liability of a lawyer

A lawyer shall insure, in accordance with federal law, the risk of his professional property liability for violation of the terms of the agreement on the provision of legal assistance concluded with the client.

33. Legal regulation of the activities of a lawyer

The legal regulation of advocacy is based on the provisions of the Constitution of Russia, which have the highest legal force in the system of legal norms, and the norms of international law. The main act regulating advocacy on the territory of Russia is the Law on the Bar. It is a normative legal act that contains, in a concentrated form, the basic rules for organizing the legal profession as a system of independent bodies, establishes the basic rights and obligations of a lawyer, establishes the procedure for acquiring the status of a lawyer, and determines the procedure for the functioning of the bodies of the lawyer community. The activities of the Bar may be regulated by other federal laws. These are, first of all, codified legal acts regulating the procedure for legal proceedings, incl. and the activities of lawyers as participants in the proceedings - the Criminal Procedure Code, the Civil Procedure Code, the Arbitration Procedure Code and the Code of Administrative Offenses. In addition, the regulatory framework for the regulation of advocacy includes the regulatory legal acts of the Government of the Russian Federation and federal executive bodies adopted in accordance with federal laws, as well as those adopted within the powers established by the Law on the Bar, regulatory legal acts of the constituent entities of the Russian Federation. Also of great importance is the Code of Professional Ethics of a Lawyer, adopted by the All-Russian Congress of Lawyers, which establishes the rules of conduct that are binding on every lawyer when carrying out advocacy, as well as the grounds and procedure for bringing a lawyer to justice. However, this document is not a regulatory legal act, but is an example of a so-called corporate act containing the rules of legal ethics. Article 1 of the Law on the Bar provides a description of advocacy and distinguishes this activity from other types of legal assistance. Advocacy is understood as qualified legal assistance provided on a professional basis by persons who have received the status of an advocate in the manner prescribed by law to individuals and legal entities (principals) in order to protect their rights, freedoms and interests, as well as ensure access to justice. Advocacy is not an entrepreneurial activity. The main difference between advocacy and entrepreneurial activity is that their goals are fundamentally different. If the purpose of advocacy is to implement the provisions of Art. 48 of the Constitution of the Russian Federation of the right to receive qualified legal assistance, the purpose of entrepreneurial activity is to make profit by means and methods not prohibited by law. The lawyer does not provide services in the economic (commodity) sense and does not profit from his activities. As stated in the Resolution of the Constitutional Court of the Russian Federation of December 23, 1999 N 18-P, advocacy "is not entrepreneurship or any other economic activity not prohibited by law and does not pursue the goal of making a profit"<1>... Business activities, in terms of the content as close as possible to the lawyer's, include the provision of paid legal services. Control over compliance with the law in the provision of paid legal services is carried out by the Ministry of Justice of the Russian Federation. In addition, the procedure for carrying out entrepreneurial activity is regulated by other, in comparison with those regulating advocacy, normative acts. The state provides lawyers with a special procedure for acquiring the appropriate status (Articles 9-13 of the Law on the Bar), guarantees of their independence (Article 18 of the Law on the Bar), as well as a procedure for paying taxes different from that of entrepreneurs (Article 226 of the Tax Code of the Russian Federation ).

Such a question as insurance by lawyers of their professional liability has recently attracted the attention of the lawyer community, since this issue concerns every lawyer. Any professional activity is associated with the risk of harm due to any mistakes, and advocacy is no exception. A reliable and effective way to protect a lawyer from the consequences of such accidents and to help resolve conflict situations is to insure his professional property liability for violation of the terms of the agreement on the provision of legal assistance concluded with the client. Federal Law "On Advocacy and the Bar of the Russian Federation" dated May 31 2002 No. 63 - FZ. Art. nineteen.

In case of professional necessity, a lawyer has the right to voluntarily insure the risk of his professional property liability. Federal Law "On advocacy and the legal profession of the Russian Federation" dated May 31, 2002 No. 63 - FZ. Art. 45 p. 3, concluding insurance contracts on conditions acceptable to them. For non-fulfillment or improper fulfillment of his professional duties, a lawyer bears corporate (disciplinary) and civil (property) responsibility. The disciplinary liability of a lawyer before the chamber of lawyers is regulated by the code of professional ethics. The conditions of civil liability are determined by the Civil Code, according to which a violation of contractual obligations may result in a lawyer having to compensate for the damage caused: real damage and lost profits.

Insurance of the risk of professional property liability is provided for a lawyer on the same grounds for which such a duty is imposed on notaries, auditors, arbitration managers, professional appraisers and other persons whose position, independent of the state, creates an area of ​​increased risk around the services of a public nature they provide. This insurance has a private and social function. It is designed, on the one hand, to protect the interests of the insured against the risk of claims against him for compensation for losses, and on the other, to guarantee the legitimate property interests of persons who most often innocently suffer losses from the violation of their professional duties by the service providers.

Professional property liability risk insurance refers to compulsory insurance. Its general legal base is formed by the Civil Code of the Russian Federation, which provides for the insurance of civil liability of persons obliged by law to insure their liability to other persons Civil Code of the Russian Federation (part two) "dated 26.01.1996 N 14-FZ (adopted by the State Duma of the Federal Assembly of the Russian Federation on 22.12. 1995) (as amended on July 17, 2009). Art 927. According to the Federal Law "On the organization of insurance business in the Russian Federation", the conditions and procedure for the implementation of compulsory insurance are determined by federal laws on specific types of compulsory insurance Federal Law of the Russian Federation of November 27, 1992 No. 4015-1 "On the organization of insurance business in the Russian Federation." Article 3, part 4.

Insurance of the risk of professional liability of a lawyer is carried out on the basis of property insurance contracts concluded personally by a lawyer (insured) with an insurance organization (insurer).

Under a property insurance contract, an insurance organization (insurer) undertakes for a fee specified in the contract ( insurance premium) upon the occurrence of an event provided for in the contract ( insured event) reimburse the lawyer (insured) or another person (principal), in favor of whom the contract was concluded (beneficiary), for losses caused as a result of this event in the insured property or losses in connection with other property interests of the insured (pay insurance compensation) within the amount specified in the contract ( insured amount).

The object of insurance is the risk of civil (property) liability of a lawyer for violation of the terms of the agreement on the provision of legal assistance concluded with the client. This does not mean that the violation by a lawyer of any obligations not expressly provided for by the concluded agreement is not covered by the insurance of the risk of professional liability of a lawyer. The text of the agreements of a lawyer concluded with a client, in practice, as a rule, does not give grounds to believe that the client can bring the violator of any specific obligation specified in the agreement to liability, but only mentions the lawyer's liability in the most general form. But the latter is just a formal confirmation of the possibility of applying to the relationship between the client and the lawyer the provisions on liability, due to the nature of the agreement concluded between them. This means that the lawyer's liability to the client may arise for a violation of obligations not only directly provided for by the agreement between them, but also provided for by the current legislation for this type of obligations, as well as arising from the content of this agreement in accordance with its legal nature

independence attorney professional responsibility

According to sub. 5 p. 4 art. 25 of the Law on the Bar, an essential condition for an agreement between a lawyer and his client is to establish the size and nature of liability, including property, of the lawyer who has accepted the execution of the order. In this case, sub. 6 p. 1 of Art. 7 of the Law provides for the obligation of lawyers to carry out compulsory insurance of the risk of their professional property liability. At the same time, this rule has not yet been applied. Its operation was suspended by Federal Law No. 320-FZ of 03.12.2007 until the date of entry into force of the federal law governing the issues of compulsory professional liability insurance of lawyers.

Prior to the entry into force of this provision, a lawyer has the right to carry out voluntary insurance of the risk of his professional property liability for violation of the terms of the agreement on the provision of legal assistance concluded with the client.

Property liability insurance of a lawyer is a novelty in the legislation on the legal profession. The legislator established it, guided by the idea of ​​protecting the client from unfair legal assistance.

However, this raises many questions about the methodology for applying this norm. Currently, there are no properly scientifically developed, proven practice and objectively reflecting the real state of affairs in this area, criteria for assessing advocate's work, methods for determining these assessments, as well as criteria for the risk of a lawyer's property liability. After all, the work of a lawyer is an individual activity that has no analogies, so it is very difficult to "fit" any methodology to such an activity.

The law proposes to insure the property liability of a lawyer for violation of the terms of a contract with a client. But a lawyer, as a rule, prepares such an agreement himself, and the draft agreement does not provide for any "dangerous" obligations (for example, "win the case", release from arrest, etc.). All other obligations are of a very general nature, similar to the requirements of advocate ethics, moral norms, and the general requirements of this Law, which are practically impossible for a law-abiding advocate to violate in the normal course of business. Risk insurance under such a contract will ultimately benefit only one insurer.

Any claims of the client to low-quality legal assistance, as a rule, are of an evaluative nature. Where there is no obvious bad faith of a lawyer in his work, his evasion of assistance or other out of the ordinary actions that harm the client, such claims are simply unprovable, because, due to the individuality of the lawyer's work, his creative nature, to measure the coefficient of utility of the lawyer's work, the effectiveness of his consultations and legal aid is impossible either by objective or even by subjective criteria. And again, only Insurance Company, which will receive an insurance premium from a lawyer, but will not be able to compensate for the material damage required by the client due to the controversy of the situation, the unprovability of the insured event, and sometimes the absence of any property damage at all, which cannot be measured, evaluated, or seen. Ultimately, the issue of insurance against the risk of a lawyer's liability is, first of all, additional costs incurred by citizens and organizations - clients of lawyers.

Thus, the implementation of the rule on compulsory insurance of a lawyer’s liability without developing objective criteria in this area will make the legal profession significantly financially dependent on an arbitrary interpretation of the risk of a lawyer’s professional liability. This is fraught with large recourse claims against lawyers' formations and individual lawyers and, ultimately, significant debts to insurers, bankruptcy and other negative phenomena associated with the activities of law firms, colleges and offices.

Insurance of the risk of professional liability of a lawyer is a new specific branch of insurance, the implementation of which should be regulated by the general rules of civil legislation on insurance (see Chapter 48 of the Civil Code).

Insurance of the risk of professional liability of a lawyer must be carried out on the basis of property insurance contracts concluded personally by the lawyer (insured) with an insurance organization (insurer).

Under the contract of property insurance, the insurance organization (insurer) undertakes to compensate the lawyer (insured) or another person (principal) in favor of whom the contract (beneficiary) was as a result of this event, losses in the insured property or losses in connection with other property interests of the policyholder (pay insurance compensation) within the amount specified in the contract (sum insured).

Article 19 of the Law on the Bar is formulated in such a way that, based on the rules of Art. 929 of the Civil Code, the following conclusion can be drawn: under the contract of insurance of the risk of professional property liability of a lawyer, in particular, the risk of the lawyer's liability for obligations arising from harm to life, health or property of the client as a result of advocacy can be insured, as well as the risk of property liability of a lawyer for violation of any terms of the agreement concluded with the principal.

Liability insurance for damage is provided for in Art. 931 Civil Code. Under the contract of insurance of the risk of property liability of a lawyer for obligations arising from harm to the life, health or property of the principal, the risk of the lawyer's own liability may be insured. A contract of insurance against the risk of a lawyer’s liability for causing harm shall be considered concluded in favor of the principal who may be harmed (beneficiary), even if the contract is concluded in favor of the lawyer. Consequently, whoever is indicated in the insurance contract as the beneficiary, by virtue of the law, only the victim - the principal is always such.

Nevertheless, according to paragraph 4 of Art. 931 Civil Code, the principal has the right to apply directly to insurance organization and bring a direct claim against her only in three cases: if insurance was compulsory; if the possibility of direct claims of the principal against the insurer is specifically provided for by law; if the possibility of such a requirement is provided for by the insurance contract.

It should be noted that by virtue of Art. 1072 of the Civil Code, a lawyer who has insured his liability for causing harm in favor of the client, in the event that the insurance compensation is not enough to fully compensate for the damage caused, will be obliged to compensate the difference between the insurance compensation and the actual amount of damage.

Liability insurance under the contract is provided for by Art. 932 CC. Under the contract of insurance of the risk of professional property liability of a lawyer for violation of the terms of an agreement on the provision of legal assistance concluded with the client, only the risk of the lawyer's own liability can be insured. An insurance contract that does not meet this requirement, by virtue of Art. 932 Civil Code will be null and void. Accordingly, the actions of an assistant and an attorney's trainee, which entailed unfavorable consequences for the client and not related to the instructions of the attorney, cannot fall under the category of violations of the terms of the agreement between the attorney and the client. The client himself cannot insure the liability of a lawyer by agreement.

Contract liability insurance is a form of property insurance, and therefore is subject to all the rules on the latter, unless otherwise provided by law.

By virtue of paragraph 3 of Art. 932 of the Civil Code when insuring the contractual liability of a lawyer, the beneficiary is always only the principal, to whom the lawyer is responsible, regardless of who is indicated as the beneficiary in the insurance contract. Unlike the rules of liability insurance for harm, in this case, the Civil Code does not in any way limit the possibility of the principal's direct and direct appeal to the insurance organization.

Currently, there are no special rules governing in detail the procedure and conditions for insurance of the risk of a lawyer's liability. In this regard, the rules for agreeing on the issue of insurance premium, insured event, sum insured, the moment when the insurer's obligation to pay insurance compensation, the insurance compensation itself upon the occurrence of an insured event and many other specific issues of insurance of the risk of attorney's liability should be developed and tested in practice.

It should be noted that insurance premiums paid by a lawyer to the insurer under an insurance contract refer to funds deducted by a lawyer in accordance with paragraph 7 of Art. 25 of the Law on the Bar at the expense of remuneration received from the client. Accordingly, insurance of the risk of a lawyer's liability will entail an increase in the cost of lawyer services, and the financial obligations of a lawyer provided for by the Law will be assigned to clients.

When studying the problems of professional liability insurance for lawyers, it is important to analyze foreign experience. Thus, property liability insurance for lawyers is highly developed in the United States, where the costs of professional liability insurance for lawyers are very significant. On average, at least 5-6 out of 100 insured lawyers per year in private practice are faced with a claim for unfair performance of their duties. Thus, a law firm with approximately 20 lawyers can receive subpoenas every year. Recently, there has been an increasing likelihood of being in danger of being sued for legal malpractise. Bringing such cases to court is fraught with not only a decrease in profits or the loss of paid hours for your own defense. This is a severe blow to self-esteem, business connections, and reputation in the legal community. It is prudent for law firms to apply preventive measures, including professional liability insurance for lawyers.

An insured event in the United States refers to an attorney's mistake or omission that results in the provision of legal services below the minimum standard of professionalism for a licensed attorney. At the same time, filing a claim against a lawyer for unfair legal practice differs from a complaint sent to the bar association. In this case, the client must prove that the direct cause of the damage suffered was an omission on the part of his lawyer, that the consequences of legal actions would have been successful if the lawyer had acted in a different way.

The professional liability insurance system for lawyers is also available in European countries.

The French Law on the Organization of the Profession of a Lawyer of 1991 provides for compulsory insurance of his professional civil liability (Articles 205, 206). The Law establishes the minimum amount of the insured amount per lawyer, and the contract may provide for a minimum threshold of insurance compensation within the amount of regular insurance premiums payable. The insurance contract can be concluded by an individual lawyer, a group of lawyers or a lawyer organization. The law provides for insurance of the risk of loss by a lawyer of valuables, property and documents belonging to (or owed) to the client and that have ended up with the lawyer in connection with the performance of professional duties (Articles 207, 208). Insurance compensation paid to the client in the event that the lawyer is insolvent, as evidenced by the lawyer's failure to comply with the client's demand for the return of values ​​or compensation for losses within a month from the date of notification.

Under German law, lawyers are obligated to insure their professional liability. Preliminary agreements between the lawyer and the client on the limitation of liability are also allowed.

English law does not allow property liability of a lawyer (barrister) for actions in a trial, fearing a review of court decisions under the pretext of a lawyer's negligent work.