Does malpractice insurance cover contract and temporary attorneys?

The coverage status of contract and temporary attorneys under a firm's malpractice policy is one of the most commonly misunderstood aspects of legal malpractice insurance.

W-2 employee attorneys are typically covered automatically under the firm's policy. If you hire a temporary attorney as a W-2 employee, they should be included in the firm's insured attorney roster and covered for work performed under the firm's supervision and name.

Independent contractor attorneys present a more complex situation. Most malpractice policies distinguish between employees and independent contractors, and independent contractors may not be automatically covered. The policy language is critical — look for provisions that define covered attorneys as employees, associates, partners, and of-counsel of the named insured. Independent contractors may fall outside these definitions.

Staffing agency temporary attorneys add another layer. An attorney provided by a legal staffing agency may be considered an employee of the agency, not your firm. The staffing agency should carry its own malpractice coverage for its attorneys, and you should verify this before engaging their services. If the agency does not carry coverage, and your policy does not extend to contract workers, a coverage gap exists.

Document review and discovery attorneys working on a project basis are frequently independent contractors. If their work contains errors — incorrect privilege designations, missed responsive documents, failure to flag relevant evidence — the supervising firm may face malpractice liability. Ensure your policy covers claims arising from work performed by contract attorneys under your supervision.

Best practices for managing contract attorney insurance include notifying your carrier whenever you engage contract attorneys, verifying that the contract attorney or their agency carries independent malpractice coverage, including indemnification provisions in your engagement agreement with the contract attorney, supervising contract attorney work with the same rigor you apply to associate work, and maintaining documentation of the supervisory relationship.