Answer Questions in your Blog, and Risk Your Malpractice Insurance
No law firm has been sued for malpractice because of bad advice given on a blog. There are at least 1,829 "blawgs" in 54 Categories, according to Blawgsearch.com. Law blogs have been a wonderful source of information for the profession and for clients.
So leave it to Chubb Group of Insurance Companies to throw some poison into a good thing. Chubb actually denied professional liability insurance for a 35-lawyer Freehold, N.J. firm, Lomurro Davison Eastman & Munoz to cover a blog the firm was planning.
Partner James Paone was told "this is not a risk they are interested in undertaking." He took the no-go message to mean the insurer anticipated that their blog postings could be construed as legal advice.
Following an online furor over this preposterous decision, Chubb backed off. James Rhyner, the worldwide lawyers professional manager for Chubb said in a statement, "Chubb does insure this new form of communication--and will continue to do so within select parameters."
Informational blogs--which are essentially news--"pose a minimal level of risk from Chubb's underwriting perspective." However "advisory blogs--such as those in question-and-answer format-potentially establish attorney-client relationships that can lead to malpractice suits," Chubb stated.
This is bonehead legal analysis. I know anybody can sue at the drop of a hat, but the idiot plaintiff suing for damages based on what they read on a law firm's blog is going to be laughed out of court. The case won't survive a motion for summary judgment. Only an insurance company could dream up such tortured visions of liability.
Here is some advice from experts:
- The suggested risk is exaggerated, because blogging is not qualitatively different than from other forms of communication a firm might use, according to lawyer and blogger Kevin O'Keefe. "It seems to me they are arbitrarily selecting one way people communicate with the world, and scaring people into some kind of risk that's not there," says O'Keefe, president of LexBlog of Seattle, Wash.
- Have a strong disclaimer, said Ariel Hessing, executive vice president of Walnut Advisory Group, which arranges malpractice coverage for law firms.
- Blogs are no different from law review articles and newspaper columns, which are not subject to bar scrutiny, according to lawyer and blogger Carolyn Elefant.
- It makes no sense for an insurance carrier to construe blogging as riskier than other communications tools lawyers use. "I can't imagine the basis for it," said Barry Knopf of Saddle Brook, N.J.'s Cohn Lifland Pearlman Herrmann & Knopf, who set up a trusts and estates blog in January and has not seen any premium increase. "Where are the suits? It isn't logical."
I'm not really sufficiently aware of the details of US law and precedent around the status of communications by lawyers, and the arguments outlined briefly in the post do suggest that legal "advisory" blogs are not particularly high risk. However, asbestosis (which has put several large companies and insurers into difficult financial positions or worse) was not accurately assessed as a risk at the time when the cover was provided by insurers. There was no known history of disease from working with asbestos.
To ignore potential risks because, to date, there has been no manifestation of the risk is weak risk management for an insurance company. It looks like Chubb have reconsidered their assessment - or maybe they are simply wary of winning this battle at the expense of the war for future business from the legal profession due to (mis)conceptions.
Blogging is still relatively new to the world. Blogging is (and while this is my opinion I would be surprised if many would disagree) less formal than a law review article or even a newspaper column. I've seen many heated debates in the comments following a post, often with the original author wading in with zeal and perhaps less reflection that is ideal. We all know of the problems arising from uninhibited use of email.
It's not an unusual point of view for the insured parties to feel that they are hard-done by insurers. I think there is another side to this story.