Risk Update

Consulting and Expert Risk — Malpractice Insurance Scope, Ex-Judge Witness DQ Denied

Why Don’t Malpractice Policies Typically Cover Consulting Work? Understanding the Ancillary Services Coverage Concern” —

  • “Ancillary services are often the issue. It might be a lawyer is planning on offering both legal and non-legal services under the banner of their practice. Think regulatory compliance and consulting in the cybersecurity sector, employment law and consulting or investigation services in the employment law sector, or business formation and consulting in the business sector.”
  • “It might be a lawyer planning to team up with a local CPA to offer legal and nonlegal services under one roof. Heck, the plan might be as simple as deciding to offer do-it-yourself legal forms from the law firm’s website. Suffice it to say the length of this list is only going to be limited by the creativity of lawyers and we can be a creative bunch.”
  • “Here’s the rub. A lawyer’s professional liability policy does not cover any and all liability that a lawyer may face. At the most basic level, a legal malpractice policy will only cover allegations of negligence in the performance of professional services that were provided to clients of the named insured, a law firm.”
  • “The definition of the term “professional services” is typically a rather broad definition that covers the legal advice and services traditionally provided in an attorney-client relationship… The important point here is to help you understand that ancillary services that are nonlegal in nature, such as consulting, are not going to be covered under a lawyer’s professional liability policy nor will any work done on behalf of someone who is not in an attorney-client relationship with you.”
  • “Since you should have coverage for both your law practice and your ancillary business, anything you do to help underscore the presence of a separate and distinct delivery model for the legal and nonlegal services you wish to offer will make it easier to properly insure both risks by way of separate policies.”

Firm Beats DQ Bid Over Ex-Judge’s Role In Malpractice Suit” —

  • “Superior Court Judge Keith E. Lynott on Wednesday knocked down plaintiff Noemi Escobar’s bid to disqualify Wilentz Goldman on the grounds that ex-state Appellate Division Judge John E. Keefe is a witness after having served as a mediator in an underlying case where a $102 million child abuse judgment was thrown out on appeal.”
  • “The judge found that a state professional ethics rule at issue applied to Keefe’s participation in the present suit as an attorney but not as a witness.”
  • “As long as Judge Lynott is “satisfied that Judge Keefe is screened from acting as an attorney for the defendants,” Wilentz Goldman and firm attorney Brian J. Molloy may continue serving as counsel for Mazie Slater and fellow defendant, firm partner David A. Mazie, according to the judge’s written opinion. ‘This is so notwithstanding the fact that Judge Keefe will be a potential fact witness whom either side may summon to appear at a deposition or at the trial,’ Judge Lynott said.”
  • “Wilentz Goldman and Molloy have implemented ‘adequate screening procedures,’ even though the firm has said it never intended for Keefe to serve as an attorney in the matter, the judge said. Those procedures include preventing Keefe from accessing the firm’s files in the case or getting a cut of the fees paid to the firm for its work on the suit, the judge said.”
  • “The dispute largely centered on the meaning of the phrase ‘any participation’ under New Jersey’s Rule of Professional Conduct 1.12(b). According to that provision, a firm in such a scenario would be barred unless ‘the disqualified lawyer is timely screened from any participation in the matter.'”
  • “But Judge Lynott on Wednesday found that it’s ‘appropriate to construe the phrase ‘any participation,’ as used in this rule, to mean participation as an attorney and not as a witness.'”