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Dentons is pleased to announce that the Firm has been ranked in 99 categories in the 2018 edition of The Legal 500 UK, and a total of 226 Dentons lawyers have been recognised across their respective practice areas.
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Starting your career as a student at Dentons exposes you to a world of experience and opportunities
With 172 locations in 76 countries, Dentons is home to top-tier talent that is found at the intersection of geography, industry knowledge and substantive legal experience. Working with Dentons, you will have the opportunity to learn from the best lawyers in the industry at the largest law firm in the world.
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As published in The Recorder
Picking the right legal malpractice insurance policy can be a daunting task. Procuring appropriate coverage generally involves balancing a law practice's unique malpractice risk factors against the price of coverage—and finding the right fit.
Here are some basic elements law practices consider in deciding which malpractice policy to buy.
Although many law practices share commonalities across the board, no law firm or practice is exactly the same. Similarly, there are unique differences among firms that insurers consider in evaluating a particular law practice's risk profile (and, therefore, in calculating premiums).
Some practice areas, such as residential real estate and plaintiffs' personal injury, often experience a higher frequency of claims. Other practices, such as intellectual property and securities, may experience fewer claims, but with a much higher severity of potential outcome.
Malpractice insurers are mindful of the types of cases attorneys and law firms handle. As purchasers of insurance, attorneys and law firms who understand the impact a particular practice area can have on the risk of a legal malpractice claim are better equipped to effectively navigate the insurance process. The American Bar Association's Standing
Committee on Lawyers' Professional Liability (of which author Shari Klevens is chair) maintains data regarding malpractice claims, which law firms can use to see how they stack up on both frequency and severity of claims.
Although every term is important, the following five elements can have catastrophic consequences for a law firm and its risk if not carefully analyzed: scope of coverage, policy limits, coverage dates, innocent partner coverages, and exclusions.
Because many law firms provide services in a number of different legal fields, it is important to ensure that the full scope of services offered by the firm is covered by the policy that is ultimately procured.
Evaluating the policy's scope also involves considering the interrelated duties of defense and indemnity. Some policies contain provisions that provide a single limit of liability for both defense and indemnity. These provisions allow defense costs to erode or liquidate the policy limits, reducing the policy's indemnity benefit, that is, the amount available to pay for a settlement or judgment.
While certainly less expensive, policies with eroding defense costs create additional risk. Indeed, studies show that legal malpractice claims are becoming more and more expensive to defend. Therefore, a policy with eroding defense costs can leave an attorney or firm with limits that are insufficient to settle a claim or pay a judgment.
Policies typically include both an "aggregate" and a "per claim" limit of liability. The aggregate limit of an insurance policy is the maximum an insurer will pay for all malpractice claims during any one policy term. For law firms with a high frequency of claims activity, the aggregate limit can be very important. Attorneys in these practice areas need enough aggregate coverage to pay all claims that may arise.
The per claim limit is the maximum amount an insurer will pay for a single claim. For high severity risk firms, the per claim limit may need to be equal or close to the aggregate limit.
When it comes to a legal malpractice policy, three dates are important: the retroactive date, the inception date, and the expiration date. Before purchasing insurance, it is important to understand the significance of each.
Typically, legal malpractice policies cover claims made during the "policy period," which generally means the period of time between the policy's inception date and its expiration date. However, policies can also cover claims arising out of acts, errors, or omissions occurring before the inception date but after the retroactive date. Basically, those policies would provide coverage for claims made during the term of the policy, even if they arise from conduct pre-dating the inception date (and post-dating the retroactive date).
Other than for attorneys brand new to the practice of law, a policy with a retroactive date that is the same as the inception date could result in a coverage gap between the date when the prior policy expires and the new policy begins.
In some instances, claims arise not from a mistake, but from a rogue partner who engages in conduct that is intentional, dishonest, or illegal. This conduct is routinely excluded from malpractice coverage. Nonetheless, plaintiffs may assert a negligent supervision claim against innocent partners, who will need protection from such claims.
Innocent partners can be covered as a result of three other provisions. First, coverage can be addressed in an innocent partner clause. Second, innocent partners can be excepted from intentional misconduct exclusions. And third, the policy application can be severable, meaning that representations by any one partner will not adversely affect any other partner. If this is a matter of importance to the firm, the firm may speak to the insurer about expanding or defining coverage in a way that protects innocent partners.
Exclusions vary greatly from one policy to another. Thus, one of the most important steps for any law practice is to carefully review and analyze the actual policy exclusions.
If a policy includes an exclusion for the type of work performed by the law practice, the practice can ask that it be deleted by endorsing the policy to that effect. If the insurer refuses, law firms can consider purchasing insurance from a different insurer so that there are no holes in coverage.
Once a law practice narrows its policy choices, the final step is to select the insurer best suited to cover the law practice.
Some insurers specialize in providing certain coverage, while others offer unique coverage enhancements and expansions. It is the total package that matters, which involves a comparison of not only price but also scope of coverage. The cheapest option is not always the best.
In addition, the reputation and financial stability of the insurer is important. Law practices can compare the most recent ratings given insurers by the standard ratings companies.
Finally, if all other things are equal, consider add-ons that some insurers offer. For example, many insurers offer resources to law practices, including free CLE credit, loss prevention newsletters, and toll-free hotlines, some or all of which may be particularly valuable to the law practice. Before pulling the trigger, considering the above factors can help to eliminate any ambiguity and achieve a beneficial result for the firm. Undertaking the insurance procurement process in a smart, methodical way can pay valuable dividends long into the future.