A lawyer client recently posed a question to me about obtaining professional liability insurance. She practiced in a larger firm, and now she wants to start her own solo practice. Solos face some unique issues in obtaining insurance and making disaster contingency plans. Some legal malpractice carriers require a solo to designate an attorney who will step in for her if she is incapacitated due to illness, injury, or even death. How does a solo find a lawyer willing to do that? Here are some of my suggestions.
Perhaps you have a colleague with a similar practice in a solo or small firm. They need lawyers available to cover for them, too. By making a reciprocal arrangement, you may be able to persuade a lawyer to take on that daunting responsibility.
If you don’t know someone who would be a good fit, however, it’s time to develop some additional relationships. How could you go about that?
- Start by getting involved with your local bar association, particularly in the sections that focus on your practice area. You can’t just show up to your first meeting and start polling the attendees about whether they would be willing to stand in for you, however. You’ll have to invest in building relationships.
- Go to the meetings regularly so that people can start to recognize you and get to know you. If you only attend sporadically, people may unconsciously perceive you as unreliable or disorganized.
- Pitch in to help in any way that you can at the meetings. Volunteer on a committee. Even if all you do is arrange chairs or handout nametags, you will begin to get to know the leaders of the organization, and they will know the other participants.
- Take an interest in the other attendees. Keep alert for ways that you can be helpful to them. Look for articles that you can send to them after the meeting on their topics of concern or introduce them to beneficial resources and reliable vendors that you find. Render lots of favors before you ask for one.
- Ask other members what they do with regard to professional liability insurance. You are likely to find yourself engaged in a lively discussion with varying opinions. That will increase your memorability to new acquaintances, while also gathering useful information.
- Ask the solos you meet about how they handle the issue of finding someone to cover for them while they are on vacation or in the event of incapacity. Don’t ask them to cover for you during that initial conversation, unless they happen to say they are looking for someone to enter into a reciprocal arrangement.
- If your area has American Inns of Court or Inns of Transactional Counsel, get involved in one of them. Many Inns have mentoring arrangements. Even if you don’t qualify for a mentor because you’ve already been practicing for a number of years, the Inns have a mission dedicated to helping lawyers enhance their practices and the profession. You are likely to encounter helpful people there, and many of them may also be solos.
- If you have business that you can contract out to another attorney, that process can create an avenue for finding someone. You will want someone you can trust to competently handle your clients’ affairs when you aren’t able to. By working with them, you can see how they work while still having the ability to supervise the quality provided to your clients. That work experience may give you both the confidence and rapport to enter into a reciprocal coverage arrangement.
- Consider talking to the career development center of the closest law school, especially if you graduated from there. In today’s market they provide a lot of advice, resources, introductions and other support to attorneys starting their own practice. You may be able to garner some recommendations from them.
- Don’t forget about your law school classmates, lawyers you meet as opposing counsel, and those that worked with you at a prior firm. Lawyers move around these days, and you may find opportunities in the shuffle. Keep in touch.
You are probably thinking that these suggestions won’t help you find someone now for your professional liability insurance application. You’re right. It will take a while to foster the kind of relationship you need, if you don’t already have a foundation in place.
The fact that you can’t find someone right away is not cause for panic. Remember that most legal malpractice policies are “Claims Made” policies. They cover claims discovered and reported to the insurance carrier while the policy is in force. Contrast this with an “Occurrence” policy (like your homeowner’s insurance), which only covers claims that arise out of an event occurring during the policy period.
A claim for malpractice against your new firm would take a while to come into existence. You have to find the client, do work for the client, and have an alleged mistake come to light, before the claim arises. Most likely that would give you at least a year of grace if you are starting a new practice. In some states, however, you may not be able to purchase “prior acts” coverage if you want protection back to the inception of your firm. Do your homework on what is available in your jurisdiction.
Professional liability coverage options may boggle the mind of lawyers who haven’t had to decipher insurance policies before. The requirements vary from state to state, but here is an article that does a good job of explaining the basic principles of malpractice coverage (PDF) and what to look for. Solo Practice University also provides a free recording of an interview on the subject.
(Photo credit: Bill Stanton checkswing.com)
All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.
And, by the way, don’t forget to build connections through Solo Practice University! Watch for other solos from your area and invite them to meet for coffee or to connect in person at a local CLE or bar association event.
The “fun” problem and issues come because the State Bar and E&O insurance carrier want solos to have someone who can step in and cover for them in the event of disability, but Texas amended rules appear to require that any attorney who might thus have access to your files, or consulted without a disability, be named in a written retainer agreement, and, in both of those situations, that’s often impracticable. Under the former rule, my contracts gave me the right to consult with or associate any attorney of my choice, but that is questionable at best under the newer rule (which I think was written either with the intent to cramp solos like I was or at least without any thought for their problems. Getting anyone to agree in advance to cover for your entire pratice, which may involve different fields not all of which they do, is tough at best, and presents tough cost and liability or insurance issues.
I remember vividly being hospitalized twice, with two very different conditions, and trying to get matters covered. The night I was (erroneously) told I could never recover and return to work, I called someone I knew only casually who graciously agreed to take over my bankruptcy case load, but some other things were harder to get covered. Then there was the time I was suddenly in traction for three weeks while between secretaries, and one attorney took a default with full knowledge of my situation, but agreements here have to be in writing which favors the dishonest and unethical. I did get that solved.
Solos’ clients typically want you, and are often unhappy if you ask someone else to cover, even when I had put that option in my written contracts. More discussion of this situation would appear to be in order, but I don’t know how to do it under the existing rules. Of course, what do you do when the designated attorney is opposing counsel or has a conflict, not unusual in small town practice?
I’ve taken over some files for a hospitalized colleague, etc., and one problem is that many solos keep too much information in their heads. Ideally your backup counsel would know what was going on, but that’s impracticable.
Peter, you have so eloquently and vividly illustrated the challenges solos face when a health problem or accident occurs. I’ll have to give some more thought to the issues you are raising with respect to the Texas Disciplinary Rules. There are a number of rules that have been written without a full understanding of all their impact. We have been fortunate to have Jimmy Brill lobbying on behalf of solos i Texas with regard to some of the issues, such as dealing with the practice of a deceased solo. Unfortunately, even someone as loved and respected as Jimmy can find it difficult to herd a roomful of lawyers.