Attorney Malpractice Insurance Policies are written on a ‘claims-made’ policy form. A claims-made policy form requires that the covered act must be reported (claim made) during the policy period or during the extension of the reporting period (ERP/Tail). Many Attorney Malpractice Insurance Policies provide for a “free” retirement or non-practicing extension of the reporting period (ERP) if the attorney has been with the insurer for the required number of years and meets other policy requirements.
Also called an Extended Reporting Period Endorsement (ERP) it is attached to the last policy in force. It only extends the reporting period providing no other coverage beyond this. The other requirement for an ERP is that the policy be terminated. This means that there is no coverage for professional acts on a go forward basis. So even if an ERP is attached to the last inforce policy the attorney has no coverage for ongoing work.
But back to the attorney’s request. The ‘retirement tail’ as it is sometimes called is referred to in most Attorney Malpractice policies as a ‘Non-Practicing’ Extended Reporting Period Endorsement. Problem is that as long as the attorney continues to practice law, it will not be issued by the insurer.
Professional Solutions Attorney Malpractice policy contains typical language describing the conditions under which the insurer will issue this endorsement:
“4. Retirement from the Practice of Law
a. If an Insured retires, permanently and totally, from the private practice of law during the current Policy Period and has been continuously insured by Us for at least three (3) consecutive years and provides written notice to Us of such retirement within sixty (60) days of the expiration of the current Policy Period, then the Insured will be entitled to an unlimited Extended Reporting Period at no additional charge.
b. It is understood and agreed that any Extended Reporting Period will not be construed to be a new Policy, and any Claim submitted during such period will otherwise be governed by this Policy.”
The problem for the semi-retired attorney is that they do not qualify for this endorsement if they continue to practice law for even one client. And again as blogged previously, if a ‘retired’ attorney starts to practice law again, the extension of the coverage is voided.