When to Report an Incident or Claim to Your Insurer - April 2006 - Malpractice Minute

• Publication year: 2006
• Pages: 93
• Citation: Vol. 35 No. 4 Pg. 93

35 Colo.Law. 93 Colorado Lawyer 2006.

2006, April, Pg. 93. When to Report an Incident or Claim to Your Insurer - April 2006 - Malpractice Minute

The Colorado Lawyer
April 2006
Vol. 35, No. 4 [Page 93]

Departments and More
Malpractice Minute
When to Report an Incident or Claim to Your Insurer
by Christopher M. Buckman

Due in part to the complexity of law and the high demands of clients, attorney error is an unavoidable occurrence. Every attorney at some point will discover a mistake has been made, and will face the difficult decision of how best to move forward. With the creation of Formal Ethics Opinion 113, adopted November 19, 2005, attorneys now have a formal ethics opinion that addresses the ethical duties of attorneys to disclose errors to clients.(fn1)

Starting Point

After an attorney provides disclosure of an error to his or her client per Ethics Opinion 113, when and how should the matter be reported to the attorney's malpractice insurance company? As a starting point, it is helpful to review the Lawyers Professional Liability Program Policy ("Policy"),(fn2) sponsored by the Colorado Bar Association. The wording used in the Policy is in keeping with professional insurance industry standards for lawyers. The "Conditions" portion of the Policy is shown below.

Conditions

A. Notice of claims and potential claims

1. The Insured, as a condition precedent to the obligations of the Company under this Policy, shall immediately give written notice to the Company during the policy period:

a. of any claim made against the Insured;

b. of the Insured's receipt of any notice, advice or threat, whether written or verbal, that any person or organization intends to hold the Insured responsible for any alleged breach of duty

2. If during the policy period the Insured shall become aware of any act or omission that may reasonably be expected to be the basis of a claim against the Insured and gives written notice to the Company of such act or omission and the reasons for anticipating a claim, with full particulars, included but not limited to:

a. The specific act or omission,

b. The dates and persons involved

c. The identity of anticipated or possible claimants, and

d. The circumstances by which the Insured first became aware of the possible claim, then any such claim that is subsequently made against the Insured and reported to the Company shall be deemed to have been made at the...