Chubb Insurance has refused to cover a blog under a law firm’s malpractice coverage.

Heather Havenstein of Computerworld reports on what James Paone, a partner at Lomurro, Davison, Eastman and Munoz in Freehold, N.J., told her:

We were in the process of beginning to set up a blog, having internal discussions about what areas of law would be the subjects. We wanted to cover the first base, which is [Chubb’s] coverage. Our insurance carrier said [a blog] is not a risk they were interested in insuring. The entire discussion stopped.

Paone also told Havenstein his law firm is setting up a meeting with Chubb Insurance ‘so we can understand what their rationale is for saying they weren’t interested in covering that kind of risk.’

It’ll be interesting what Chubb tells Paone. I have not heard of any cases where a law firm has been sued or been the subject of a malpractice claim from publishing a blog. What does Chubb know that the rest of the world does not?

I got a call from a New Jersey reporter on Chubb’s denial to cover. I told her it sounded like a typical insurance company. ‘Exclude coverage for anything you can get away with and talk of high risks that aren’t real so as to increase premiums and/or to sell new types of coverage.’

Dennis Kennedy, an expert in tech law, told Haverstein that he had not heard of anything like that before. Wonder why? Perhaps, as Dennis says “…people aren’t that familiar with the technology and think it is somehow completely new and different. Really blogs are just a form of Web pages. What you’re doing is not different than if you are speaking in public or writing an op-ed piece.”

Gee, let’s all call Chub and ask if we can do seminars, write an op-ed piece, or God forbid, use the telephone for business development work. All very scary and high risk activities.

Updated discussion on Chubb denying coverage to bloggers:
Bill Gratsch: The idea that a law firm’s weblog is somehow completely different from its e-newsletter or its company website shows a lack of understanding of web technology.
Carolyn Elefant: My concern with Chubb’s suggestion that blogging may give rise to malpractice liability is that it opens the door for the bar associations to regulate lawyer blogging, setting standards for disclaimers and even reviewing postings.
J. Craig Williams in comments at Carolyn Elefant’s post: If malpractice carriers regulate blogs, then they’ll also have to regulate law firm newsletters, articles that lawyers publish, radio and TV programs where lawyers appear, lawyer quotes in newspapers, magazines and elsewhere and, heaven forbid, law review articles. Where will it end?
Chuck Newton: …[I]f this is true, then why is it exactly that Chubb is writing insurance on any lawyer that talks to the press, appears on TV, advertises, talks shop at cocktail parties, sends out a newsletter, or shares war stories at the courthouse? You cannot say that these other examples are preposterous because they amount to the same thing.
Andrew Bluestone at New York Attorney Malpractice Blog: Will there be a new question on legal malpractice insurance appllications, asking whether you have a web site, a blog site, whether you write, whether you lecture? Keep tuned.
Eric Turkewitz: Before You Blog, Check With Your Insurance Carrier. Does this mean their insured won’t also be able to write an article? Put up a web site? Give a CLE lecture? If you have Chubb as your carrier, you may want to tell them to take a powder before they tell you. And tell them why they have lost your business.
Eric Goldman: I suspect this is one of those early overreactions to theoretical risks by an insurance carrier, and the insurance industry will wise up after a number of years of better understanding the (low) malpractice risk profile of blogging.
Allison Shields: …[L]awyers have been giving seminars, writing articles and posting information on their websites. They’ve been sending client newsletters containing ‘case updates’ or ‘decisions of interest.’

To my knowledge, none of the above activities have been considered inherently risky by malpractice carriers. Why single out blogging? Is it the sheer volume of content? Blogging is no more risky than sending a newsletter, providing seminars or writing articles.

In today’s marketplace, failing to keep clients and referral sources informed and failing to build expertise and credibility can be deadly to a law practice. Not only that, but bloggers provide a lot of legal information at no cost, and have greatly contributed to the education of both the legal community and the general public. First, the lawmakers make the rules for ‘advertising’ a law practice more restrictive, ostensibly to prevent the public from being misled. Now, the malpractice carriers are preventing lawyers from providing timely information to the public about legal topics.

Brett Trout: Here are some other things that Chubb Insurance should absolutely not allow their insureds to do:

  • No speaking at seminars;
  • No newsletters, either print or email;
  • No interviews with newspapers, magazines or other periodicals;
  • No Web site;
  • No talking with a prospective client on the telephone;
  • No meeting with a client before an attorney-client fee agreement is signed;
  • Absolutely no podcasts;
  • Nothing else that clients or prospective clients may find beneficial or informative.

Related posts:
Chubb Insurance responds to denial of coverage for blogs
Lawyers respond to Chubb Insurance’s position on law firm blogs
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  • This is a classic instance where people look at something new in the abstract without realistically comparing it to what we already do. In part its the fear of the unknown.
    Its the same effect that results in bloggers revealing corporate secrets who would never consider doing that in a letter.
    Reminds me of an instance from years ago when a client was working on a policy to allow employees to work from home. They created a great, long list of all the issues/problems that it could create. My first comment was that they already had most of those risks for the average employee in a cube. I’m not sure whether they were relieved to hear that, or nervous because they now thought of those risks for all employees.

  • Allison Shields has it exactly right. In what way does legal blogging differ from going out to give a speech at a convention, addressing a seminar, speaking in person or over the phone to clients, sending e-mail blasts or delivering a newsletter? How about doing a podcast? Giving an interview to a reporter? On a basic level, blogging is just a different means of delivery of a message. On a more nuanced level, good bloggers understand the separation between means and method and increase the effectiveness of their product by adopting their content, rather then replicating the same thing, to reach a broader audience. That difference, however, has nothing to do with increased risk of malpractice or defamation, it has to do with effective marketing in a different forum.
    I often encounter people — and this is surprising to me each time I encounter it — who either have little to no conception of what the internet is about beyond the home page of CNN, or who react to a lawyer’s blogging as if he had an unlicensed side business of working on people’s electrical wiring or delivering babies. One justification I have heard about fear of blogging is that it creates a permanent record, and when you put out a statement it’s there for all to see. This really misses the point: if you as a lawyer do not understand your words can be used against you whether uttered to your neighbor, spoken at a seminaor or given in a written formal opinion, you are already a walking malpractice case waiting to happen. If you do understand that, blogging is just another aspect of your professional montage.
    On one level, I do understand this fear, however: some people’s knowledge of blogging may come from political or other sites where commenters and bloggers frequently engage in the worst, most sickening kind of abuse, mean-spiritedness and uncontrolled behavior. If your understanding of blogging reaches only as far the blogger who left the Edwards campaign because of past offensive posts on a variety of topics, you may suppose that is the currency of the trade.

  • David makes a great point. Any lawyer worth his/her salt (and who is also tech-savvy enough to want to create a blog) will recognize from the outset that it constitutes a permanent record, and therefore take special care in crafting what they post.
    This smacks either of the insurance company a) not understanding what a blog is, and just flat refusing it due to ignorance, or b) working really hard not to cover anything, so that they can start their insurance marketing (with increased premiums?) for the new endeavor. Either way, I predict it will get a little embarrassing for them.

  • Everyone’s point is well taken. But in defense of Chubb, who I’ve found to be flexible in profiling risk, a blog unlike an e-newsletter , or presentation has more of the characteristics of one-on-one consultation and thus attorney client like communications-relationships, often without the benefit of client or scenario qualification. Hence their is real risk of layperson misconception between an educational blog versus an advisory blog And if lay misperception exist there is always a chance of a malpractice suit–we have all seen frivilous malpractice suits. However, I do believe Chubb should further articulate and substantiate its concerns so that law firms can address them in a more cogent manner and I am sure they will–if only because it make good business sense if that’s still an important trait in our current global environment.

  • Thanks for the comment Gary.
    No prudent lawyer though is going to allow their law firm blog to have, as you describe, ‘characteristics of one-on-one consultation’ and thus create as a you say ‘attorney client like communications-relationships.’
    It’s just not done. We have about 500 lawyers on our blogs and not one of them is on a blog that allows unmoderated comments. And none of the lawyers that I know of are having anything close to one-on-one consultations on their law firm blog.
    Heck, if lawyers wanted to have have ‘one-on-one consultations’ in a question and answer session following a seminar presentation they could do so. And worse yet, there would be no record that such ‘one-on-one consultations’ did not take place if someone attending makes such a crazy claim. From that standpoint blogs are a lower risk than seminars.
    Chubb is overreacting, naive, adding more exclusions to coverage which was purchased, or trying to pick up a few bucks selling new coverage. My take is it’s a combination of all four.

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  • We were thinking about starting a blog on our site, but after reading this post and threads, it almost seems futile. It’s hard to understand how people can start websites that only blog about how bad an insurance company is for their service and then when a company wants to start a blog, their insurance won’t cover them.

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  • this is interesting post , I am new to the site and been working for law firms for the last 10 years . I like this site but I have a lot of reading to catch up on

  • On the whole, I find this to be a very interesting subject. I think it is just ignorance on the part of the insurance company not to insure them for the blog, but I also have to wonder why they were seeking insurance for their blog in the first place. Is there some sort of precedent that we don’t know about? I mean, it’s not like they were going to get San Diego cash advance loans or something.

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  • Despite all the disclaimers on a blog it may be argued that you would be giving legal advice. Might be even worse for paralegals or legal document assistants.