How do you add of-counsel attorneys to a malpractice policy?

Adding of-counsel attorneys to your firm's malpractice policy requires careful coordination with your carrier because the of-counsel relationship creates shared liability that must be properly insured.

The first step is notifying your carrier before the of-counsel arrangement begins. Most policies require disclosure of all attorneys who provide legal services under the firm's name or through the firm. Adding an attorney without notifying the carrier could result in a coverage denial if that attorney generates a claim.

The carrier will typically require information about the of-counsel attorney including their practice area focus, years of experience, claims history (usually going back 5 to 10 years), disciplinary history, state of licensure, and the nature and scope of the of-counsel relationship. An of-counsel with a clean claims history in a low-risk practice area will have minimal premium impact. An of-counsel with prior claims in a high-risk area could significantly affect your premium.

The nature of the of-counsel relationship matters for insurance purposes. A true of-counsel arrangement (where the attorney is closely affiliated with the firm but not a partner or associate) creates shared liability — the firm can be held vicariously liable for the of-counsel's malpractice, and vice versa. This means both parties need to be covered under the same policy or have coordinated separate policies.

If the of-counsel attorney maintains their own separate malpractice policy, ensure there are no coverage gaps or conflicts between the two policies. The policies should coordinate on primary versus excess coverage, and the definition of covered legal services should be consistent.

Premium impact typically ranges from $1,500 to $5,000 per of-counsel attorney, depending on their risk profile. Some carriers treat of-counsel as equivalent to a partner for rating purposes, while others apply a reduced rate reflecting the typically lower volume of work.

If the of-counsel relationship ends, notify your carrier immediately. The firm's policy should continue to cover claims arising from work the of-counsel performed during the relationship period, but ongoing coverage for the of-counsel's future work should cease.