Claim time is not the time to find out the attorney has no malpractice coverage for the reported claim. Attorneys that do work for clients where the attorney is involved with client management or ownership may run afoul of attorney malpractice policy exclusions. As no two client relationships are the same and no two policies are alike, where an attorney is doing legal for clients with an ownership or management role it is wise to read the entire policy. Where one malpractice insurance policy may provide coverage, the same client relationship with another malpractice policy excludes coverage. Depending on the attorney’s attorney/client relationship(s) there may be no coverage provided by the attorney malpractice policy.
The Berkley Insurance policy excludes certain client ownerships, management and/or directors/officer legal work from coverage.
IV. EXCLUSIONS
This policy does not apply:
F. Capacity as Director, Officer, Fiduciary
to any Claim based on or arising out of an Insured’s capacity as:
1. a former, existing or prospective officer, director, shareholder, partner, manager or member (or any equivalent position) of any entity if such entity is not named in the Declarations;
2. a trustee of a pension, welfare, profit-sharing, mutual or investment fund or investment trust; or
3. a fiduciary under the Employee Retirement Income Security Act of 1974 and its amendments or any regulation or order issued pursuant thereto or any other similar state or local law;
provided, however, this exclusion does not apply to a Claim based on or arising out of an Insured’s capacity as a member, director or officer of any professional legal association, including any Bar Association and any similar organization or association, its governing board or any of its committees;
G. Capacity as Public Official
to any Claim based on, or arising out of, or in any way involving an Insured’s capacity as a public official or an employee or representative of a governmental body, subdivision or agency unless such Insured is deemed as a matter of law to be a public official or employee or representative of such entity solely by virtue of rendering Legal Services to it;
H. Owned Entity
to any Claim based on, or arising out of, or in any way involving Legal Services performed, directly or indirectly, for any entity not named in the Declarations, if at the time of the act or omission giving rise to the Claim, the percentage of ownership interest, direct or indirect, in such entity by any Insured, or an accumulation of Insureds, exceeded 10%;
III. DEFINITIONS
F. Insured means the Named Insured, Predecessor Firm and the persons or entities described below:
1. any lawyer, partnership, professional corporation, professional association, limited liability company or limited liability partnership who is or becomes a partner, officer, director, stockholder-employee, associate, manager, member or employee of the Named Insured during the Policy Period shown in the Declarations;
2. any lawyer previously affiliated with the Named Insured or a Predecessor Firm as a partner, officer, director, stockholder-employee, associate, manager, member or salaried employee but only for Legal Services performed on behalf of the Named Insured or a Predecessor Firm at the time of such affiliation. The term “previously affiliated” as used herein does not include a lawyer who, during the Policy Period and while affiliated with the Named Insured: a) voluntarily ceases, permanently and totally, the private practice of law; or b) dies or becomes Totally and Permanently Disabled. Such lawyer will be deemed to be an Insured under paragraph 1. above;
3. any lawyer, law firm, partnership, professional corporation, professional association, limited liability company or limited liability partnership who acts as Of Counsel to the Named Insured or any non-employee independent contractor attorney to the Named Insured, but only for Legal Services rendered on behalf of the Named Insured and only if a fee inured or, in the event of a contingency fee, would have inured, to the Named Insured. No fee need inure to the Named Insured where pro bono Legal Services are rendered by such Of Counsel Insured where at the time of retention, there was approval by the appropriate committee or lawyer within the Named Insured that the matter would be handled without compensation. Any lawyer, law firm, partnership, professional corporation, professional association, limited liability company or limited liability partnership who previously qualified as an Insured under paragraph 1. above, but gave up the position of partner, officer, director, stockholder-employee, associate, manager, member or employee to act exclusively as Of Counsel to the Named Insured, will be deemed to be an Insured under sub-paragraph 1. above;
4. any person who is a former or current employee of the Named Insured or any Predecessor Firm and not a lawyer, but solely for services performed by such person within the course and scope of their employment by the Named Insured or any Predecessor Firm and provided that the services in dispute are Legal Services of the Named Insured or any Predecessor Firm;
5. the estate, heirs, executors, administrators, assigns, and legal representatives of an Insured in the event of such Insured’s death, incapacity, insolvency or bankruptcy, but only to the extent that such Insured would have been provided coverage under this Policy; or
6. the spouse or domestic partner of an Insured; provided, however, coverage is only afforded to such spouse or domestic partner only for a Claim arising solely out of their status as such and where such Claim seeks damages from marital community property, jointly held property or property transferred from an Insured to the spouse or domestic partner. No coverage is provided for any act or omission of an estate, heir, legal representative, assign, spouse or domestic partner.
G. Insurer means the entity issuing this Policy as listed on the Declarations Page.
Affected insured attorneys should not solely rely on the information provided in this blog. As facts may differ, determining malpractice coverage for each attorney client relationship requires a complete review of the malpractice policy. The facts that cause an alleged malpractice claim could also impact coverage.
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Lee Norcross, MBA, CPCU
Managing Director, CEO
(616) 940-1101 Ext. 7080