Employed Lawyers Professional Liability May 4, 2015

Transcription

1 Employed Lawyers Professional Liability May 4, 2015 Suzanne Cruse General Counsel/ Strategic Advisor Stephanie Fagin Employed Lawyers Product Manager- Chubb Insurance Keith J. Frank- Moderator Partner- Forchelli, Curto, Deegan Schwarz, Mineo & Terrana, LLP

2 Agenda What is Covered Under an Employed Lawyers Liability Policy? In-House Legal Malpractice Exposures Claims scenarios Is there Coverage Under a D&O Policy? Coverage features 2

3 Employed Lawyers Marketplace Bureau of Labor Statistics estimates largest employers of in-house counsel are Insurance industry Investment banks & securities brokers Manufacturers Commercial banks 3

4 Employed Lawyers Marketplace Who is buying employed lawyers liability? Financial institutions Health care organizations Associations Colleges & Universities Manufacturers Retailers 4

5 Employed Lawyers Liability Coverage Malpractice insurance for legal services performed by the in-house legal team for the organization Legal services Not management decisions If organization is a service firm, does not encompass services the organization performs for others for a fee 5

6 Employed Lawyers Liability Coverage Coverage extends to individuals beyond the employed attorneys ELP by Chubb and ForeFront Portfolio 3.0 ELL Coverage Part include: Employed lawyers Legal assistants Notaries public Temporary attorneys Independent contractor attorneys 6

7 Employed Lawyers Liability Coverage Coverage extends to legal services beyond those rendered to the organization ELP by Chubb and ForeFront Portfolio 3.0 ELL Coverage Part include: Pro bono legal services Moonlighting legal services, as defined Includes personal legal services to employees and executives of the employer 7

8 Employed Lawyers Liability Coverage Multiple Insuring Agreements Side A: Non-indemnifiable claims Side B: Indemnifiable claims ELP by Chubb includes Insuring Clause (C) Subpoena Defense Costs Coverage Even when the definition of claim has not been triggered, if there is a subpoena regarding an attorney s alleged wrongful act, our policy extends up to $10,000 to cover legal fees, including motions to quash or modify the subpoena 8

9 Malpractice Exposures In-House Legal services performed for the organization relied upon by third parties Opinion letters or comments relating to financial documents Review of shareholder communications and other publicly available documents Review and assessment of new regulations Approval of filings made with regulatory boards or agencies Drafting contracts executed with vendors or customers 9

10 Malpractice Exposures In-House Legal services performed that directly impact executives and employees Drafting employment practices Legal advice to the benefit plan fiduciary Participation in internal investigations Legal advice to executives and employees involved in corporate litigation or regulatory investigations Personal legal services 10

11 Malpractice Exposures In-House Legal services performed outside the employment relationship Moonlighting Pro bono 11

12 Malpractice Exposures In-House What keeps an in-house attorney awake Large number of emerging areas of law Social media Green environmental law and regulations Economic impact on their client organization Downsizing & reductions in employee benefits Financial solvency Economic impact on their legal department Shrinking legal departments & budgets for outside legal resources = Strained internal legal resources 12

13 Claim Scenarios A large public company misstated its revenue during three quarters of the year, triggering multiple securities class action and derivative suits alleging, among other things, violations of the Securities Exchange Act of Claims were brought under the company s directors and officers liability insurance policy. Acting independently, shareholders also brought claims against the company s general counsel and two associate counsel in their capacity as attorneys for the company, alleging that they gave opinions to the board that certain contracts at the heart of the litigation were complete, in force, and binding, causing the company to recognize certain income. In addition, the lawyers allegedly gave opinions regarding disclosing (or not disclosing) certain issues surrounding the company s inventory. 13

14 Claim Scenarios The general counsel for a not-for-profit organization provided advice to the human resources manager regarding the investigation and handling of a sexual harassment situation. The general counsel interviewed the supervisor who was accused of harassment. The supervisor was terminated after the completion of the investigation and in accordance with the general counsel s legal advice. The supervisor brought suit against the company and the human resources manager for wrongful termination and against the general counsel for negligence and misrepresentation. 14

15 Claim Scenarios The CFO of a large publicly held service company sought the advice of the company s general counsel regarding compliance with certain disclosure requirements of the Sarbanes-Oxley Act of The advice was incorrect and as a result the CFO was terminated and found personally liable under the provisions of the Act. The CFO then brought suit against the GC, alleging negligence, conflict of interest, and breach of fiduciary duty. 15

16 Claim Scenarios A restaurant chain sold franchises to independent franchisees, and inhouse counsel was involved in the negotiation of franchise sales. In one instance, in-house counsel rendered an opinion to the restaurant chain s management that a restaurant could be built on land selected by the franchisee. Relying on this opinion, the franchisee purchased the property and began construction. The opinion rendered by in-house counsel was incorrect and cost the franchisee an additional $310,000. A suit was filed against the attorney and his employer. Allegations against in-house counsel included breach of fiduciary duty, conflict of interest, and negligence in rendering the opinion. 16

17 Claim Scenarios An on-staff lawyer for a not-for-profit health care organization wrote an article discussing recent case law for an industry-sponsored publication for his company. In the course of his article, he mentioned a competitor in an uncomplimentary way. The publication was distributed internationally and the competitor brought suit in France, alleging defamation. 17

18 Objections to purchasing ELP Indemnification is provided to counsel Organization purchases other liability insurance, i.e. Directors & Officers Liability Not in the budget 18

19 Indemnification Consider the following regarding indemnification May not extend to everyone in the legal department May be permitted but not required May be impacted by insolvency Probably does not extend to pro bono work, personal legal services to another employee or moonlighting 19

20 Coverage under a D&O policy? Considering the following regarding D&O insurance... Who is an Insured? All members of the legal department? Non-officers? Temporary attorneys? Contract counsel? 20

21 Coverage Under a D&O Policy? Considering the following regarding D&O insurance... Is the performance of legal services an insured capacity? Expressly excluded or granted? Silent? 21

22 Coverage Under a D&O Policy? Considering the following regarding D&O insurance... Coverage for legal services to other corporate entities that are not named on the D&O? Attorneys often provide legal services to parent holding companies, affiliates, sister companies or JV s Probably not in scope of insured capacity 22

23 Chubb Group of Insurance Companies ( Chubb ) is the marketing name used to refer to the insurance subsidiaries of The Chubb Corporation. For a list of these subsidiaries, please visit our website at Actual coverage is subject to the language of the policies as issued. Chubb, Box 1615, Warren, NJ This document is advisory in nature. The information provided should not be relied on as legal or insurance advice or a definitive statement of the law in any jurisdiction. For such advice, an applicant, insured, listener or reader should consult their own legal counsel or insurance consultant. No liability is assumed by reason of the information this document contains. 23