Author Archives: INF_WP_U53r

Unveiling the Risks: How the ‘Of Counsel’ Title Can Impact Your Insurance Coverage

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Titles in business are considered very important: President, CEO, VP etc……law firms the same thing…Partner, senior partner, member, associates.  But did you know there is one title in a law firm that can cause confusion and sometimes affect insurance coverage?  The title OF COUNSEL. 

I’ve been told, ask 10 lawyers the definition of OF Counsel and you’ll get 10 different answers.  At some point, we can discuss and try to narrow down a more specific definition of what an OF Counsel is but today I want to point out how the term OF COUNSEL may affect your legal malpractice insurance coverage at retirement.

Most policies provide what is called a free retirement tail endorsement when an attorney from the firm retires.  Usually there are a few requirements that must be met in order to qualify for that free tail.  On some policies OF COUNSEL attorneys are not eligible for the free tail strictly because they are titled OF COUNSEL.  This usually is not an issue for a solo but for firms with 2 or more attorneys it can cause great concern.

I have seen instances where firms with 3 or 4 attorneys give the title OF COUNSEL to the founding member of the firm with no consideration of how this could affect the founding members coverage, his or her estates coverage or the retiring attorneys financial position during retirement.  Usually the change to OF COUNSEL is a result of the attorney working less hours and nothing more.  In this case it seems a shame for the attorney to lose coverage and in some cases not be able to get back because of working less time?  

So before changing anyone’s “title” to OF COUNSEL and printing new letterhead check your legal malpractice policy. Contact your broker/carrier and ask them for an interpretation of the coverage.  Make sure the change to OC won’t affect the retirement tail coverage. OR if it does you know and are ok with any change.  Who knows, maybe it won’t change but then again maybe it will.  Better safe than sorry.

Real-life Cyber Claim Examples: The Importance of Cyber Insurance

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It seems as though everyone likes to hear a good war story and it is no different when it comes to cyber claims. Besides price, it may be the most asked question I hear – What kind of claims are being filed? Can you give me an example of a claim to show that this is real and I should be buying a policy? So, let’s delve into this topic and let me tell you a couple of real-life cyber claim scenarios:

War Story 1: The Case of Accidental Data Loss

A small law firm lost all of their data, including backups, from a shared office space when the IT administrator formatted the hard drive on the office equipment. The firm, which had three lawyers, was operating inside unused space at a larger firm. As part of the arrangement, the smaller firm also used the IT systems of the larger firm.

In an effort to segregate the data of the smaller firm, the larger firm gave them access to their own file server, which was normally used for email only. The server began having issues, so the IT administrator backed up the emails on the server, formatted the hard drive, and reinstalled all the software. Unfortunately, the IT administrator did not remember to backup the data from the smaller firm before formatting the hard drive.

The firm suffered an interruption of operations as a result and incurred significant expense to recover the data manually. In this case, the damages and loss are as follows:

  • Data Restoration Expense: $23,000
  • Loss of Billable Hours: $8,900

War Story 2: The Case of Accidental Data Breach

A law firm handling Qui Tam cases suffered an accidental data breach resulting in legal liability and disciplinary proceedings for alleged ethical violations. The firm used a cloud storage service for all firm data. The cloud storage provider offered two tiers of service to clients, free and premium.

Data in the “free” storage service is searchable and can be downloaded by other customers. The firm neglected to pay their renewal fees for the “premium” service, so the firm’s account reverted to the “free” service and all of the firm’s data was searchable and available online for several months. During that time, numerous parties downloaded the details of a sensitive whistleblower case.

As a result, the firm faced a lawsuit from the former client in the whistleblower case as well as a disciplinary proceeding. Several other suits from other current and former clients are also pending. In this case, the damages and loss are as follows:

  • Notification Expense: $27,000
  • Defense Expense: $305,000
  • Damages: $2,150,000
  • Fines & Penalties: $120,000

Note: pending suits from other clients are not included in loss amounts listed above.

These examples illustrate the real-life implications of not having a robust cyber policy. In today’s digital age, where data breaches and cyber attacks are becoming more common, having a comprehensive cyber insurance policy is not a luxury, but a necessity. It’s time to take a proactive approach to protect your firm and clients from potential cyber threats.

Maximizing Your Cyber Insurance: Understanding the Full Range of Protection

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Most of the calls I receive about cyber insurance are for Fraudulent Funds Transfer.  This seems to be what the caller is most interested in and for good reason especially if your profession is in the area of law, real estate, or title/escrow work.  However the cyber policy is much more than just fraud transfer coverage.

The policies are usually what I consider a program or a suite of coverages made up of first and third party benefits and a strong risk management team.  Several of the carriers that write cyber insurance will perform or run an analysis of your website/online presence and identify weakness that exists and exposures that may lead to a cyber attack or event.  The carrier prepares a report that will not only identify the weakness but will also offer suggestions on how to correct or eliminate the exposure.  They also will rank or compare your cyber situation and scan results to other companies of similar size and industry. Allowing you to see if you’re keeping up with others in your industry in keeping your business, your clients and your customers safe from cyber attacks.

Other benefits provided by most cyber policies include: Notification costs.  Did you know that the government requires you to notify your customers in the event you have a cyber attack and personal/confidential data is compromised?  Think of how many files you have.  It won’t be cheap to notify and complete this task.  Ransomware.  Think you’ll never become a victim of this because your office is too small, and you don’t have or keep large amounts of personal confidential information? Think again.  Everyone is a target for this type of claim.  A hacker breaks into your computer system and stops your ability to use it or shuts down the entire system unless you pay XX amount of dollars.  How long can your office run with no access to your computer system?  

Fraudulent transfer of funds, risk management team services, strong claims team, notification costs and Ransomware coverage only scratches the surface of what coverages/benefits are provided in most cyber policies.  Although you may only have interest in one or two of these you need to be aware of all the coverages available to you in your cyber policy.  Rarely in a cyber claim is only one benefit/coverage part triggered.  Usually several parts come into play.  Don’t short yourself by not knowing all of the coverages and assistance that is available to you under your policy.  Read it and call your broker, and or the risk management team of the program with your questions.

Are You Taking Advantage of the Ancillary Benefits That Come With Your Malpractice Insurance Program?

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I’m always surprised at the number of people who don’t take full advantage of the ancillary benefits that come with malpractice insurance programs. I know that most of the carrier programs we market have several useful benefits outside of the policy that can help a firm.

Items like: online risk management classes, some of which are eligible for free CE and possible premium discounts, samples of engagement, disengagement, and non engagement letters, as well as suggestions on how to implement a conflict of interest system.

You can also find examples of how to implement a dual calendar system and comments on the latest programs available in the marketplace for calendaring, client intake, and billing. Not all outside the policy benefits have everything we mentioned, but they do have some combination.

Keeping Your Documents Secure and Accessible

As an agency, we’ve developed a client portal with 256-bit encryption for your security. Current clients can use this portal to gain access to the previous applications you’ve submitted to us as well as your past and current legal malpractice insurance policies.

I get calls, some urgent, from insureds asking if I can resend the policy as they cannot locate it in their office. Imagine how convenient it would be if you could just go to the client portal and see all the information you needed online!

So if you’re one of the insureds that are using the additional benefits available to you from your legal malpractice insurance program, good for you. It can and will make your law practice better and maybe even reduce the chances of being sued. If you’re not, I would encourage you to at least take a look at what is available; you might be surprised. Oh, and did I tell you it is usually free?

Does a Legal Malpractice Policy Cover a Cyberattack, Data Breach or Wire Transfer Fraud Claim?

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At INf, we just finished recognizing the month of October as Cybersecurity Awareness Month. I hope you enjoyed the few educational videos that we were able to send your way.

Since then, a few of our clients have asked me to talk a little bit about whether a legal malpractice policy would cover a claim that was based on a cyberattack, data breach, or wire transfer fraud. So as a bonus to our October series, we’ll go over a few of these issues.

Cyberattack and Data Breach Claims

Let’s take a look at the cyberattack and data breach issues. My answer is going to be a pretty typical insurance answer in this situation—maybe. It might be covered based on the claim circumstances. My best guess is that if you submit a legal malpractice claim based on a cyberattack or data breach, it will trigger the coverage.

The carrier will review the claim issues and decide which issues are going to be covered and which issues are not going to be covered. I would believe that those issues that are typically considered legal malpractice issues are going to be covered, and those issues that are strictly considered cyber issues will not be covered. Now, your policy may have certain language that will provide a very limited amount and scope of coverage for some cyber events. So you might be able to glean a little bit of coverage out of your legal malpractice policy in that event.

Wire Transfer Fraud Claims

On the other issue of wire transfer fraud, my answer is going to be a little bit different. I don’t believe that most legal malpractice claims or most legal malpractice carriers are going to cover claims for wire transfer fraud. Most of the carriers and carrier personnel that I have spoken to believe that wire transfer fraud is theft. And a legal malpractice policy is not theft protection.

Perhaps a fidelity bond, maybe crime coverage, or a standalone cyber liability policy would be the better policy from which your coverage would come. Some legal malpractice policies even specifically exclude theft, wire transfer fraud, and bank transfer fraud.

Consider a Cyber Liability Policy

If you’re looking for coverage to replace the physical funds that are lost from a wire transfer fraud, my suggestion to you is to not depend on your legal malpractice policy to do so. I think you’ll be very disappointed. Which brings me to my last and final point: you need to seriously consider the purchase of a standalone cyber liability policy. It’s going to protect you against a host of exposures, like cyberattacks, data breaches, ransomware, phishing schemes, and so much more.

So if you really want to protect yourself, the office, and your client, the purchase of a cyber liability policy is the way to go.

These policies help protect you from the threat of hackers, data dumps, stolen passwords, ransomware attacks and more.  

It takes less than 5 minutes to fill out the application for this insurance.  Contact INF to get started at 412.563.2106.

Facing Legal Malpractice Claims: Proactive Measures for Lawyers

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Our July Legal Malpractice Awareness Month would not be complete without some discussion about legal malpractice claims. I get asked a lot about claims and if there are really a lot of lawyers who get sued for legal malpractice. I always answer the same way: yes, there are a lot of claims filed against lawyers.

I recently had a discussion with a legal malpractice claims analyst, and he commented that the insured’s question or concerns today should not be “if I get sued, but rather “when I get sued and how many times.” I think that sums it up: lawyers being sued is not uncommon, and it does happen with frequency.

I believe that the reason most people don’t hear about lawyers being sued that often is that most lawyers don’t want to talk about it. It is not a pleasant experience to have your work questioned or accused of making a costly mistake. I understand that.

If you do find yourself in the position where someone is alleging that you made a mistake on their case or you find on your own that you made a mistake, don’t make it worse by ignoring it or hoping it goes away. It never does, and refusing to acknowledge it will only make it worse.

There is no scarlet letter, no stoning, and no public humiliation for reporting a claim. Chances are, several of your colleagues have gone through the same thing. Call your carrier, the hot line, or your broker. Get the issue reported immediately so you can get the right people involved early on. You will be glad that you did.

What Are Reasonable Policy Limits and Deductibles For My Coverage?

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One of the harder questions that lawyers face when purchasing or renewing a legal malpractice insurance policy is: what policy limits and policy deductibles should I choose, and are those limits sufficient? 

No one wants to buy more coverage than they need or have a deductible that never gets satisfied. Unfortunately, there just isn’t a stock answer. Since every law firm is different, the policy limits and deductible chosen should be based on the individual characteristics of the firm. Never choose limits and deductibles based on what your friend or the law firm down the street has. Take some time to consider the matter. No one knows your practice any better than you do. 

Consider the type of law or cases your firm handles. What is the value of the cases you handle? What is the largest case value that you handle? What is the smallest? Is there an “average” value? How many lawyers are in your firm? What is the economy like? Lawyers seem to get sued more often in a bad economy than in a good one. These are just some of the questions you should ask yourself before deciding on your limits and deductible. 

Once you have gathered the relevant information and thought about it, you’ll be in a much better position to decide, and I think you’ll find the decision becomes a little easier. Not easy, but a little easier.

What Makes A “Good” Lawyers Legal Malpractice Insurance Program?

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You as lawyers have several choices when it comes to legal malpractice insurance.  My guess is all brokers selling this type of coverage will tell you that their policy or program is a good one.  But what exactly makes up a good program? 

Let me tell you what I think makes up a good program and distinguishes it from other insurance program or policies in the marketplace:

 1. A malpractice helpline or hotline for insureds.  This is important as it provides an outlet for the insureds to discuss the disciplinary or claim issue with one of their colleagues.

2. A library of risk management tools.  For example, sample copies of engagement letters, disengagement letters, samples of conflicts of interest checks and examples of docket control systems.  This can be web site based or hard copies

3. Risk Management classes and or videos that may or may not provide CLE credit

4. Comprehensive policy form that provides: full prior acts coverage, career coverage, broad definition of professional services, unlimited tail coverage endorsement and a free retirement tail when appropriate.  

5. An involved and experienced broker. Does your broker look like me, act like me, talk like me?  If not they should.  A broker is your connection to the carrier.  Likewise the broker is the carrier’s connection to you.  Education, dedication and commitment is a must. LPL is not a one size fits all, not even a one carrier fits all kind of product.

When searching for or reviewing your legal malpractice insurance program, you may not be able to secure everything I just mentioned but a good program will have most of them.

There Is No One-Size-Fits-All Legal Malpractice Policy

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Many carriers trying to be innovative or distinguish themselves in the Legal Malpractice marketplace try to add certain coverages to the policy hoping to get your business.  While any additional coverage is a good thing, sometimes the advertising and marketing of the additional coverages can cause confusion about the type and extent of the additional coverages offered.  

Some of the additional or ancillary coverages that carriers in the Legal Malpractice marketplace are marketing/providing are: Cyber Coverage, D&O Coverage, Fidelity Coverage and even some BOP coverage or business owners.  Again, the additional coverages are not bad to have but they should not be thought of as complete coverage for that type of exposure.  All of these ancillary coverages are just that – ancillary. Don’t be fooled in thinking that the ancillary coverage is all you need for those exposures.  The ancillary coverage will provide minimal coverage in terms of depth and limits.  

For a more comprehensive coverage with broad depth and adequate limits, you should consider a standalone or separate policy for each of the exposures that exist in your firm.  Although buying separate policies for cyber, business owners, and crime coverage will add to your outlay of cash it should provide adequate protection for you and the firm in the event of a claim or loss.  Notice I did not mention D&O coverage, if you sit on a non profit or for profit board you definitely need to check with that entity and confirm that they do have an inforce policy that protects you in your position as board member.  

Don’t depend on your Legal Malpractice policy to act as a cover all policy.  It’s not!  It’s great to have supplemental and ancillary coverages in the legal malpractice policy but it is a mistake to believe these types of coverage will provide the coverage needed in a claim situation.  Investigate standalone policies. 

Are You Looking For Conflicts Of Interest?

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attorney consulting with client

I was recently at a malpractice program given by a carrier we use and they were talking about where their claims are coming from.  One of the top 3 causes they presented was conflict of interest.  I can’t say that this shocked me but I was a little bit surprised this was in the top 3!  

Back in the 90’s conflicts of interest was a huge risk management topic and was on everyone’s radar.  For the past several years however the topic seemed to cool when discussing legal malpractice, so to hear it was in the top 3 did catch my attention.  It should also catch your attention too!  

Conflicts of interest are easy to get caught up in if you’re not careful.  They come in many different disguises right?  Representing both parties in the same case be it divorce or accident, representing a new client against a former client, having an ownership interest in your client, managing and or directing a clients business.  The list can go on and on.  

Be careful to not get caught up in the friends and family plan either.  You may have had this happen to you when a family member might say “My wife and I want a quick divorce, here is what we agreed to. Can you draw up the paperwork and we’ll both sign and be done?” or a similar situation where you are asked to help save your friends money by representing both sides in any transaction.  Friends and Family can and do sue.

So just a heads up to stay vigilant with COI checks so you don’t become part of the top 3.