One of my gun-totin’ libertarian friends asked me:

What do you think about those legal insurance funds for CHL holders?
For example:
https://www.texaslawshield.com/

Second Call Defense

Any good? Worth it? Or no opinion?

I have different issues with the two companies.

Texas Law Shield is not “insurance,” but rather “a licensed legal services company.” It purports to provide “legal representation by an attorney”—an attorney, not the attorney of your choice—for any contract holder in good standing who has a “use of a firearm:”

Any incident where the Legal Service Contract Holder either discharges or displays a firearm for the purpose of using the firearm as a weapon to stop a threat, whether the Legal Service Contract Holder pulls the trigger and discharges the firearm or not. This term does not include taking the firearm to a location that is prohibited by federal, state, or local law, negligent or unintended discharges, or negligent or unintended displays.

So if you’re not using your firearm to stop a threat, you are not covered. Often in a gun case the central issue is whether you are using your firearm to stop a threat.

The contract holder is not covered if he is carrying somewhere that he is not allowed to:

In order for Legal Service Contract Holder to receive the benefits described in this Legal Services Contract, at the time of a use of a firearm incident occurs, the Legal Service Contract Holder must be in legal possession of a firearm, and at the time of the use of a firearm the Legal Service Contract Holder must be in a location where Legal Services Contract Holder could legally possess a firearm.

That doesn’t seem unreasonable, but again, whether the accused was in legal possession of a firearm is often a central question in a gun case.

Here’s the big exclusion:

This Legal Service Contract specifically excludes legal representation for the Legal Service Contract Holder’s use of a firearm, if at the time of the use of the firearm; Legal Service Contract Holder was in the commission of any crime using their firearm for which justification under state law is inapplicable.

What does “for which justification under state law is inapplicable” mean? Does it mean that your commission of the crime was unjustified, or that justification was not legally available as a defense?

Who decides whether you were committing a gun crime, and when?

I see three obvious possibilities (there may be more to the contract than linked to from the “legalese” button here, but that is what my analysis is built on):

First, Texas Law Shield could decide before the representation whether the otherwise-covered use of a firearm was a violation of the law. It’d be in the company’s interest to decide that it wasn’t, so that they wouldn’t have to pay some lawyer to show up for you. Recall the Stanford case, in which the insurer came in to court to prove that its insured had committed money laundering so that it wouldn’t have to pay up.

If Texas Law Shield looks at the case (newspaper reports? the offense report? the charging instrument) and concludes that you were not justified in using your weapon, they can deny coverage, leaving you to hire a lawyer. Depending on who that lawyer is and who Texas Law Shield’s lawyer would have been, you might be better off, but the money you had sent to Texas Law Shield would have been wasted.

Second, Texas Law Shield could decide during the representation, after “a” lawyer had started representing you, whether the firearm use was a crime. The lawyer would be in a quandary: he would know he wasn’t getting paid, but he would have an obligation to you. A good lawyer would take this as a cheap lesson and keep doing his best, but there are lawyers out there who would seek to withdraw because of Texas Law Shield’s decision not to pay any more, and there are lawyers out there who would not put their full energy into the defense of a case on which they weren’t being paid. There would be a conflict of interest between the lawyer and you, which the lawyer wasn’t anticipating when she took the case.

In either of those first two scenarios, you could then sue Texas Law Shield, alleging that its failure to provide you with a defense was in bad faith, but you’d have an uphill battle (because they had a good-faith reason to believe, when they denied coverage, that you were guilty), and potential compensatory damages would be limited, probably to the amount that Texas Law Shield would have paid “a” lawyer to represent you. If Texas Law Shield denied coverage and you were convicted, the rule in Peeler v. Hughes and Luce would keep you from recovering for that incidental (and yet not incidental) damage.

Third, Texas Law Shield could decide after you were convicted (because sometimes innocent people get convicted) that the jury was right, and that you had committed a crime. Because that jury verdict is pretty conclusive evidence, for legal purposes, that you had.

By that time you would already have received all of the help from “a” lawyer that Texas Law Shield was willing to provide you, and either they would have paid her (in which case they could, perhaps, sue you) or would not have (in which case she could, perhaps, sue you). At that point, though, a civil lawsuit is likely the least of your worries.

Even if you were acquitted, Texas Law Shield could deny coverage—if they refused to pay for a lawyer and you sued them, they could defend themselves by proving by a preponderance of the evidence in civil court that you had committed a crime with your gun.

Which of these three scenarios is the worst case for the toter of guns is an open question: depending on who “a” lawyer is, no lawyer at all might be a better deal. Gun toters are usually nearer the right edge than the left edge of the Nolan Chart; not the sort of people who would choose government-employed defense counsel over private counsel of their choice. Yet they’ll pay Texas Gun Shield for the services of some unspecified lawyer in the unlikely event that they get in trouble with their guns.

Texas LawShield looks to me like a sucker’s bet. You’d be better-off making friends with a good criminal-defense lawyer, sending him a good bottle of bourbon now and then, than sending your money to a company that, in the highly unlikely event you get in trouble with your gun, might—or might not—provide you with a lawyer of unknown provenance.

You can’t actually see all of the terms of Second Call Defense’s contract without giving them a credit card number and signing up (no thank you), but it appears that Second Call Defense is insurance: for $240 a year, they say, you get civil-suit defense, $50k in civil liability coverage, $50k in “accidental shooting protection” (whatever that is), and $50k in criminal-defense reimbursement, as well as bail money, $5k cash up front for a lawyer, and various other baubles.

While it is highly unlikely that you’ll need it, Second Call Defense’s $50,000 will pay for a first-class defense on most any gun crime. If you had a one-in-208 chance of using that coverage—Second Call would be an even-money bet. Still, it’s insurance, which can be a good bet, despite the numerical odds, when the possible loss is catastrophic. If there is no way you could afford $50,000 for a defense, you might pay $240 a year to insure against a less than one-in-208 chance of that $150,000 loss.

But if “reimbursement” means reimbursement, Second Call Defense won’t pay for the criminal-defense lawyer up front. They’ll pay you back after you’ve spent the money. But you’ll still have to come up with that money yourself. And if you have that money to spend, it makes more sense to self-insure than to pay for insurance for a minuscule risk.

If you don’t have that $50,000 to spend, you’re not getting that $50,000 lawyer with or without Second Call Defense’s reimbursement: reimbursement is not something you can spend on a lawyer. If you come to me and say, “I don’t have the money now, but I have Second Call Defense, and they’ll pay,” I’ll first ask to see your contract with Second Call Defense. And if “reimbursement” means reimbursement I’ll politely decline unless you can come up with the money elsewhere.

Because aside from the fact that you can’t be reimbursed for something you haven’t paid, I’ll see this in the Second Call Defense agreement: “The Membership Services WILL NOT be provided if your ownership or use of a firearm violates applicable law.” On those terms, I wouldn’t—in fact I couldn’t—agree to represent you in hopes of Second Call Defense’s reimbursement money. I wouldn’t because I get paid up front; I couldn’t because taking on a criminal case in the anticipation of getting paid after I win is taking the case on a contingent fee, and that would be unethical. (Suppose that I beat the State on an aggravated assault case down to an unlawfully-carrying-a-weapon plea. Is it in your best interest for you to take it? Is it in my best interest?)

Both Texas Gun Shield and Second Call Defense have an inherent conflict of interest: if you lose your criminal case, they don’t have to pay for your defense, so they benefit if you lose. Why anyone would trust a company with such a conflict to choose his lawyer for him is baffling to me.

Second Call Defense is—it appears—better on this front because it gives you the power to choose your own lawyer. It is insurance that pays for your lawyer of choice, but it only helps you if you have the money to pay for your lawyer of choice in the first place, and even then only if that lawyer beats your case. Just a more expensive sucker’s bet.