How Does Malpractice Insurance Work When Working With Temporary Attorneys?

The legal landscape is changing! Using freelance/temporary attorneys is a great way to grow your practice, your profits, and not turn away work. Work will ebb and flow, and not all firms or solo practitioners can just hire a full time associate to help them during these crazy times. You may have overflow work or other resourcing challenges, but you don’t want to hire someone full time just yet. Getting help from an experienced freelance attorney on an as-needed basis can help your practice tremendously during these peak times.

When you do want to work with an attorney on a temporary basis, whose policy covers their work? This is one of the most common questions our clients ask me when they call us to work with one of our freelance attorneys. They want to know how to handle malpractice insurance. Does the freelance/temporary attorney carry insurance? Which policy covers their work, the firm’s or the attorney’s (if they carry one)? What is covered? What is not?

Malpractice insurance covers work a law firm does on behalf of their clients. Anytime work is done on behalf of the firm for clients, the work of the partners and associates (as well as anyone else that falls under the definition of “Insured” in the policy description” is covered under that policy.

So what happens when work peaks at certain times and you need to bring in an experienced freelance attorney to help you only during these peak times? The attorney is doing work for the firm, for your clients, just like you and other full time associates you may have at your firm. But the temporary attorney is not a full time associate, and you only need them for maybe one month, or maybe six months. Is their work covered by your current policy?

Please keep in mind while reading this overview that the best thing to do is to always read your policy and call your carrier to make sure you know exactly what is covered, who is covered, and what is not.

I have spoken to numerous firms and solo practitioners about this after they have spoken to their carriers. This is usually how it works.

1. Most malpractice carriers will tell you that any work done for your firm or practice, regardless of whether it is done by a partner, a full time associate, or a freelance/temporary attorney, who are independent contractors, is covered by your policy. In fact, if you read your policy (which is always a good idea if you have not), it will usually say something such as an Insured is defined as, amongst other persons, “… any non-employee independent-contractor attorney to the Named Insured, but only for legal services rendered on behalf of Named Insured.”
2. Most carriers do not make you pay an extra fee for using freelance/temporary attorneys. The premium you pay already covers their work.
3. Some carries may ask that you tell them at the end of the year how many hours roughly the freelance/temporary attorney worked, and they may ask that you pay a small fee on top of your premium. You can usually ask what this fee will be ahead of time.
4. Some carriers may ask that you tell them each time you work with a freelance/temporary attorney.
5. Some carriers ask you up front at the beginning of a renewal year if you plan on using freelance/temporary attorneys and roughly how many hours you may need to work with them. Again the carrier may or may not add to your premium.

These are not the only scenarios. They are just the most common ones that have come up. As you can see, there are a number of different possible scenarios so it’s always best to call your carrier and have something in writing in your policy or an addendum that tells you what is covered and what is not when working with independent contractor temporary attorneys.

What happens if you work with a freelance/temporary attorney that has malpractice insurance already? From my experience, I have seen and heard clients say that their carrier has told them that the policy of the firm will cover the work of the freelance/temporary attorney and the freelance attorney’s policy never comes into play. That’s because the current insurance policy is covering any work done for the hiring firm.

As a freelance attorney do you need to obtain malpractice insurance? It depends. And that’s usually because of what is described in #1 above. The firm you work with will most likely already have you covered under their policy. However, there are always exceptions so there may be situations where the hiring firm’s policy won’t cover your work so you need to obtain coverage. It is always best for the freelance attorney to get confirmation from the hiring firm of whether the hiring firm’s policy covers their work. Make sure to follow up with a hiring firm to ensure you’re covered!

Again, please keep in mind that this is just a general overview of how malpractice insurance usually works. I always tell clients that ask me this question to pick up the phone and call your carrier about any questions regarding malpractice insurance. Never assume anything is covered or not covered. That way you are clear about everything and so is the temporary attorney you want to work with.

If you are a freelance/temporary attorney and are wondering if you have coverage, what it covers, again I would say pick up the phone and call your carrier. And if you are thinking of getting coverage, call different carriers and see how they each work.

ABOUT THE AUTHOR:
Leila Kanani is a patent attorney with over a decade of experience in the top IP firms. She then founded her own patent boutique law firm. After realizing the staffing challenges solo and small firms faced when they had too much work, but not enough to hire full time associates, she founded Intermix Legal Group. The freelance attorneys at Intermix are all ones that left traditional firm life for career flexibility and they provide temporary legal services to law firms nationwide.