Risk Update

Insurance Insights (Brexit, #MeToo, Coverage Lost and More)

One way of managing risk is with insurance. Clearly a backstop and less desirable strategy than avoiding or mitigating risk in the first place, it’s one of the biggest financial investments every prudent firm makes. Here are some recent articles, analysis and observations in this realm:

First, an article from Marsh on a topic that continues to unfold in unpredictable ways: “How Could Brexit Affect the Risk and Insurance Needs of UK Law Firms and Solicitors?“–

  • “It is difficult to determine what the full impact of the UK leaving the European Union (EU) will be; however, there are questions UK law firms and solicitors should be considering now in order to be prepared for the outcome of future negotiations.”
  • “While the expertise of law firms means they are well placed to face Brexit-driven challenges, they will still need to consider how the UK’s exit from the EU could affect their risk and insurance needs. Our adviser discusses some of the issues that law firms should consider in order to safeguard their businesses. Marsh will also continue to work with law firms and insurers to further understand the full risk and insurance implications of Brexit.”
  • “From an insurance perspective, some commentators have considered how the current and future dependency on “freedom of services” passporting rights throughout the EU will affect insurance solutions for businesses.”
  • “If the enforcement of UK judgments across the EU is not maintained, then litigation by EU companies in the UK courts is likely to decrease.”
  • “While the application of law and technical aspects of contracts are likely to require individual review, some routine/boilerplate issues may need to be reviewed from a risk perspective.”
  • “Consider changes to the Continuing Competence regime: Firms may want to ensure they can demonstrate that Brexit- related learning and development needs were identified and increased levels of specific training, and/or allocation of time in practice meetings was given, to address possible impact and changes.”
    “Data protection rights are likely to undergo changes before the UK exits the EU. From time to time, firms’ approaches will require review in any event.”

On the Brexit front: “Brexit Is Messy. London’s Lawyers Are Cashing In” —

  • “In any divorce, lawyers are the only surefire winners, and as Britain muddles through one of the biggest, messiest and most complicated breakups in economic history, the country’s top law firms are booming.”

  • “‘There’s been some swearing, some clients whose faces have drained of color, when they realize the sort of impact this all will have,’ said Andrew Hood, a regulatory and trade partner at Fieldfisher, a London-based firm with more than 1,000 lawyers. ‘And in the last six weeks, the number of clients who have woken up worried about what a no-deal Brexit looks like has doubled or tripled.'”

  • “‘What’s now in the back of everyone’s mind is that Brexit may be great for lawyers in short term,’ said Jolyon Maugham, a tax lawyer and anti-Brexit campaigner. ‘But it’s like you’re a funeral director at the time of the plague. You’re busy in the moment but you fear a bit for your business model.'”

After #MeToo, whole industries have been blacklisted by insurers for sexual harassment liability coverage” —

  • “A new report from Betterley Risk Consultants, shared with The Intercept, reveals that many of the world’s largest insureres will no longer conside whole industries for “employment practices liability insurance” (EPLI), which covers liability from ‘sexual harassment, sex discrimination, and other employee claims.'”
  • “Ten of the 32 largest insurers will no longer write EPLI policies for financial firms (brokers, investment banks, VCs, etc); eight will no longer sell EPLI coverage to entertainment and media companies. Also blacklisted are law firms, car dealerships, and other industries where ‘superstars’ or ‘celebrities’ or ‘high-billing rainmakers’ have historically been able to get away with bad behavior so long as they continued to perform for the firm.”

For additional commentary on the #MeToo topic, see also that latest in the Georgetown Journal of Legal Ethics: “Taking #MeToo Seriously in the Legal Profession” —

  • “Part I reviews different states’ rules of professional conduct and their interpretations with respect to gender violence and harassment. It homes in on state-to-state discrepancies in interpreting certain shared provisions that could be used for disciplining rape, sexual assault, sexual harassment, and domestic violence. Part II then reviews enforcement patterns for states that either do or might professionally sanction gender violence and harassment. Noting that enforcement rates are staggeringly low, Part II identifies deficiencies in the rules of professional conduct that permit abusers to keep practicing without professional sanction.”

While likely not an issue for our readers specifically, this article was certainly educational about baseline industry standards on coverage: “More states consider requiring legal malpractice insurance” —

  • “Currently, Oregon and Idaho are the only states that require attorneys to carry legal malpractice insurance coverage. Active consideration of the issue is taking place in Washington state, which has proposed that failure to comply with obtaining coverage would result in attorney suspension, as well as California, which has proposed similar amendments to its licensing rules. California is also proposing that attorneys be required to disclose if they are not insured.”

  • “Those in favor of mandatory malpractice coverage argue public protection is at risk and that lawyers who fail to carry coverage may leave clients unable to secure relief in the event of malpractice. Those taken advantage of by attorneys acting fraudulently have limited recourse against lawyers who fail to exercise ordinary care.”

Which lead to this interesting update (h/t Prof Resp Blog): “New Jersey Supreme Court Rejects Mandatory Malpractice Insurance, embraces disclosure of coverage” —

  • “The New Jersey Supreme Court has issued a Notice to the Bar. It has rejected in part, accepted in part, and deferred in part the recommendations of its Ad Hoc Committee on Attorney Malpractice Insurance. It concurred with the November 2017 report recommendation that malpractice insurance not be mandated for all private practitioners.”