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Warning: Blogging Can Render You Ineligible for Malpractice Insurance

Initially, I thought that this headline, Law Firm's Website Makes It Uninsurable, was some kind of joke. After all, who ever heard of an insurance company turning a firm down because it blogs? But following the links further, I came to this article, Before You Blog, Check With Your Insurance Carrier. Even with disclaimers, professional liability issues may lurk (NJLJ, March 20, 2007), which offers further detail. From the article:

Law firms of all sizes have turned to blogs to showcase their expertise, but at least one New Jersey firm has put the plan on hold out of liability concerns.  The reason: Its malpractice carrier said blogging would make the firm uninsurable.  James Paone II, of Lomurro Davison Eastman & Munoz, says that when he called Executive Risk Specialty, a unit of Chubb, he was told "this is not a risk they are interested in undertaking."  Though the reasons were not specified, Paone says he took the no-go message to mean the insurer anticipated that the blog might contain postings that could be construed as legal advice. He says he is still pursuing the idea and awaiting the carrier's fuller explanation. Chubb did not return calls by press time.

The article suggests that clear, visible disclaimers that a blog does not provide legal advice or create an attorney-client relationship may convince Chubb and other insurers that blogging does not pose any potential liability risks.

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. Thus far, in many jurisdictions -- though, notably, not New York -- lawyers could argue that blogs are no different from law review articles and newspaper columns, which are not subject to bar scrutiny. But if blogs are deemed to create malpractice liability, where law review articles and newspaper columns are not, the distinction can serve as another justification for bar regulation of blogging. And that's a path that I'd like to avoid ...

Posted by Carolyn Elefant on March 21, 2007 at 07:51 PM | Permalink | Comments (164)


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