Criminal defense attorneys will tell you that the most important question to ask a potential client is not whether he is innocent or guilty.

It's how much money does he have.

Houstonian Brisby Brown has learned that it might be useful to turn the tables.

Brown sat in jail for about 18 months on drug charges as, he claims, his attorney pressured him to plead guilty while refusing to look at evidence showing his innocence. Only on the day a jury was being selected did the lawyer send an investigator to the scene of the alleged crime, he said in a complaint to the State Bar.

Apparently when prosecutors got around to examining the evidence, they weren't impressed. They dropped the charges.

In addition to filing a complaint with the Bar, Brown engaged an attorney to sue his defense attorney for malpractice. But the attorney, who would be paid from the winnings, dropped the matter when he learned that the defense attorney had no malpractice insurance.

A jury might have awarded Brown a nice chunk of money for sitting in jail needlessly, but it would be hard to collect that money from an uninsured lawyer, and the new lawyer didn't feel he could afford to spend a lot of time on the case with little chance of getting paid.

So before hiring a lawyer, you may want to ask if he or she has malpractice insurance.

But asking such a question can feel awkward, and one lawyer I talked to said it could discourage a lawyer from taking your case.

That's a good argument for why the Texas Supreme Court, which makes ethical rules for lawyers, should have joined a growing number of states in requiring lawyers to disclose whether they carry malpractice insurance.

But the Supreme Court last week surprised absolutely nobody in deciding not to establish such a requirement. It did issue a batch of new rules, few of which are controversial.

In deciding against requiring disclosure of malpractice insurance, which is considerably less radical than requiring lawyers to carry such insurance, the Supreme Court ignored the Bar's own poll indicating that 70 percent of the public approved of the requirement.

But lawyers didn't like it. A State Bar task force that actually studied the issue voted against the requirement 6-5, but the Bar's full board opposed it 39-1 according to Texas Lawyer, a weekly newspaper.

Texas in minority

In a news release, the Supreme Court justified its decision by saying that nobody clamored for the rule at public hearings.

But according to Austin attorney Charles Herring, who has written a book on legal ethics, “25 of 29 states that have addressed the issue have adopted such a rule.”

What's more, the Texas Supreme Court has already issued rulings relieving two entire bodies of lawyers from much exposure for malpractice.

In a 1995, the Supreme Court considered the case of a woman who accepted a plea deal over a white-collar crime. Only later did she learn that her attorney had not informed her of an offer by federal prosecutors not to seek her indictment if she agreed to testify against associates who were more culpable than she was.

Unpersuasive argument

The Supreme Court ruled that anyone convicted of a crime couldn't sue their attorney, no matter how bad the representation, until they had their conviction overturned. It would, the court said, be bad public policy to allow criminals to shift the consequence of their crime to their lawyers.

“The day they issued that ruling was the day I dropped my malpractice insurance,” a criminal defense lawyer told me. “I've never been sued by anybody who I got acquitted.”

The next year the state Supreme Court ruled that a probate lawyer who badly botched a client's will couldn't be sued by heirs or potential heirs. The reason: He wasn't their lawyer.

The dead person was the client, and while dead people sometimes vote in Texas, they rarely sue.

Then-Justice John Cornyn argued in a dissent that errors in wills are rarely found before the person's death. It was a rationale that apparently is persuasive in 45 other states, but not to the lawyer-coddling Texas Supreme Court.