Malpractice Insurance and Law Blogs

Can recent actions by a major legal malpractice insurer have a chilling effect on your law blogs content?

In Spring 2007,  Executive Risk Specialty, legal malpractice insurance carrier,informed attorney James Paone II, that his law blog was not a risk they were interested in undertaking.  Executive Risk Speciality, a Conneticut company and a a unit of Chubb Group of Insurance Companies. 

Paone is an atttoney from Freehold, New Jersey and practices with the law firm of  Lomurro Davison Eastman & Munoz. Paone is a member of the firm’s Corporate/Commercial Litigation, Civil Litigation, Personal Injury and Employment Law Departments.

Credit for this story goes to Lisa Brennan, a writer for the New Jersey Law Journal.  On March 16, 2007. she reported that the insurance company determined Paone's blog  provided legal advice and was not insurable.  The word of this potential denial of coverage spread like wildfire, specially in the blog-sphere. 

But this story deserves closer inspection. 

First, consider Chubb Group's position.  After the story broke, Chubb issued a clarification and said that “Chubb does insure this new form of communication-and will continue to do so within select parameters."   

Chubb’s guidelines state that bulletins posted on Web logs are acceptable.  Chubb, however, does not find a question and answer format acceptable, as it may be construed as seeking advice.  Chubb said that its underwriters will evaluate each submission on a case-by-case basis.

Chubb offers guidance with its resource entitled A Lawyer's Guide to Managing E-Lawyering Risks and Managing Legal Malpractice.  This resource raises a number of important factors the legal community should consider such as:
•    Who is authoring the blog?   A blog provider has protection under the Communications Decency Act, but organizational authors of a blog entries can be sued for defamation.
•    Is your organization's blog properly "scrubbed"?  All blogs should be evaluated by individuals qualified to pinpoint potentially damaging, disparaging or slanderous remarks. It also should be checked for proprietary company information.
•    Is the blog's content original?   Organizations need to consider intellectual-property issues including links to other Web sites or copyrighted content.
•    Is the blog secure? Organizations should update and review their networks; back up resources and archive on a regular basis and install the latest firewall and virus protection software.
•    Do you use cautionary language and/or disclaimers? Are they prominently placed? Language should not be general and should be tailored to your line of business.
•    Does the blog offer advice? Failure by a company or firm to properly define the relationship could lead to damaging legal consequences.

Second and according to the Volokh Conspiracy blog,  many bloggers rely upon their homeowner insurance policy for coverage.  From a blogger's perspective, such reliance is not fail safe. Homeowner insurance policies often do not cover punitive damages. Most of the damages in cases like defamation or copyright are punitive damages, so these policies will not be helpful. It is also unclear whether these policies cover legal expenses incurred in the defense of such actions. Homeowner coverage is also void if the blogger makes any money from their blog.  The amount of money is irrelevant, so using Amazon Associates or Google Ad Sense may void the coverage.

As Robert Cox of Media Bloggers Association states "free speech isn't free."  He advocates liability insurance product for bloggers. He claims "the future of blogging/citizen journalism depends on a workable liability insurance product."

KRS