Commentary: Insurers move to limit malpractice coverage

By Edward Poll

Dolan Media Newswires

MINNEAPOLIS, MN--The cost of malpractice insurance is an issue for every lawyer. Annual malpractice premiums cost thousands of dollars, often straining the ability of small firms and sole practitioners to purchase insurance when premiums approach 10 percent or more of their income -- on a product they likely will never need. And now a new issue has made malpractice insurance even more troublesome: the attempt of some carriers to exclude fee lawsuits from policy coverage.

Let's begin at the beginning of most malpractice actions, the initial engagement. An engagement agreement should be a "two-way street." The lawyer promises to understand the needs and wants of the client, represent the client to address challenges facing those needs and wants (whether involving litigation or a transaction), and to provide that representation competently. The client, on the other hand, promises to tell the truth to the lawyer, provide information and documents relative to the matter when the lawyer asks for them, and to pay the fee as billed in accordance with their arrangement.

What are the worst consequences of failure to honor the respective promises? For the lawyer, it is a malpractice suit and possibly a disciplinary proceeding. For the client, it's withdrawal by the lawyer (unless on the eve of trial or without adequate notice that would prejudice the client) or a lawsuit over nonpayment of the fee. However, some malpractice insurance carriers are now lining up with clients, saying that if the lawyer sues for fees, and the client cross-complains, countersues for negligence or files a disciplinary complaint with the state bar, the carrier will not cover the lawyer's defense costs or pay any judgment against the lawyer. The effect of this is to deny the lawyer the ability to collect the fee when the client fails to pay.

Why pay malpractice insurance premiums for coverage you will not receive when you need it most? Fee suit exclusions appear to be a veiled attempt by insurance companies to raise premiums without notice to the lawyer. And the lawyer generally isn't even aware of this exclusion. When premiums rise openly, lawyers can make a cost/benefit analysis of affordability, balancing cost against benefit. The cost factors include the basic insurance premium, the nature of the coverage (more coverage, greater cost), and whether defense costs reduce the face value of the policy. Benefits come down to a question of how much protection is provided. Fee suit exclusions in effect increase cost and decrease coverage without the lawyer being aware of it.

In every other business sector, creditors have the right to sue debtors for refusal to pay legitimate debts resulting from their purchases. Why should lawyers be placed in a different position? The facts are, according to people I've spoken with in the insurance industry, that there are few collection lawsuits filed by lawyers and even fewer countersuits for negligence; when countersuits are filed, lawyers win as many as 9 out of 10 disputes. Yet insurers do not acknowledge these realities when they refuse to pay defense costs or (unlikely) judgments. Even if lawyers can afford malpractice insurance, marketplace factors beyond the lawyers' control are conspiring against them. It's another reason to make one wonder why anyone wants to go to law school.

Edward Poll, J.D., M.B.A., CMC, is a law practice management thought leader and contributor to this publication. His website is at lawbiz.com.

Entire contents copyrighted © 2012 by The Dolan Company. All rights reserved. Reproduction in whole or in part without written permission is expressly forbidden.

Published: Mon, Jan 9, 2012

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