What insurance do of-counsel attorneys need?

Of-counsel relationships create unique insurance challenges because the attorney occupies a space between employee and independent practitioner. The first step is defining the relationship clearly in a written agreement that specifies whether the of-counsel attorney works exclusively for the firm, maintains an independent practice, or both. This distinction directly determines how insurance should be structured.

If the of-counsel attorney works exclusively for your firm and does not maintain a separate practice, they should be listed as an insured on your firm's malpractice policy. Most carriers will cover of-counsel attorneys in this arrangement for an additional premium, and the coverage extends to all work they perform on behalf of the firm. Confirm with your carrier that the of-counsel designation is explicitly noted on the policy, as some carriers distinguish between partners, associates, and of-counsel for rating purposes.

If the of-counsel attorney maintains an independent practice alongside their work for your firm, the insurance arrangement becomes more complex. The attorney should carry their own malpractice policy for their independent work, and your firm's policy should cover their work performed under the firm's name. There is a risk of coverage gaps if a claim arises from work that straddles both relationships. Both policies should be reviewed to ensure there are no exclusions that would leave either party uncovered.

Regardless of the arrangement, your of-counsel agreement should address who bears the cost of malpractice insurance, what happens to coverage when the relationship ends, and who is responsible for tail coverage. If the of-counsel attorney has claims history, disclose this to your carrier upfront, as failure to do so could jeopardize coverage for the entire firm.