Top 10 Ways to Commit Malpractice with Your Blog

Kevin O'Keefe has been closely following the issue of legal malpractice coverage for blawgs. In his most recent post, Kevin lays out some blawging don'ts:

1. Puffing on your blawg.
2. Establishing an attorney/client relationship on your blog.
3. Failing to use the same precautions you use for email, fax and phone.
4. Going into the specific facts of a case with a commenter.
5. Not displaying a disclaimer that you are not offering legal advice.

In addition, I would add the following don'ts taken from the book I co-authored with Rush Nigut Yblawg: The Nuts and Bolts of Lawyer Blogging:

6. Discussing client information.
7. Discussing any cases your firm currently has pending.
8. Posting or responding to comments by an opposing party or presiding judge.
9. Affiliating your firm with personal blogs of firm staff or lawyers.
10. Failing to comport with the advertising laws of your state.

For more "don'ts," be sure to contact Rush to get your copy of Yblawg: The Nuts and Bolts of Lawyer Blogging.

Thanks to Matt Krigbaum for referring me the latest on this story.

Brett Trout

blawg law blog Chubb malpractice yblawg

Got Cyber Insurance?

Q. What do most companies not have none of,
most companies think they have some of,
but no company ever wants to use any of?
A. Cyber Insurance

According to the Computer Security Institute, use of cyber insurance is still low, but on the rise. More than two thirds of 313 companies surveyed have no cyber insurance. The biggest threats - viruses and unauthorized access to information - accounted for over $25 million in losses among the companies. Mobile hardware theft and intellectual property infringement round out the top four threats, accounting for about 75%s of cyberthreat losses. 90% of the companies acknowledged some type of cyber security breach, with annual losses averaging six figures per respondent.

Most companies believe they are covered in the event of a cyber security breach, but most are not. Read your policy carefully to determine if it covers damages related to cyber liability threats such as:
1)Data theft, alteration or destruction (fraud or virus)
2)Business interruption,
3)Intellectual property infringement(patent, trademark, copyright);
4)Extortion (hackers);
5)Third party claims (denial of service attacks).

Some companies try to cobble additional coverage into their bricks and mortar policies. While one policy does reduce the likelihood of double paying for the same coverage, obtaining cyber insurance from a company specializing in such policies has advantages. Probably the biggest advantage is the access to the company’s risk mitigation practices. Insurance companies specializing in cyber insurance ask you a lot of questions about your security procedures. You can use these questions like due diligence check-off list; discovering the most inexpensive way to reduce the most damaging threats. Adding firewalls, comporting with state and federal cyberlegislation, backing-up off-site, updating to the most current antivirus and intrusion software and physically securing mobile hardware are important steps for any company. Having your own cyberliability agent can take you a step further – recommending ways to reduce threats specific to your industry, and even your particular business.

Cyber insurance is more expensive than regular insurance for several reasons. First, customers are not as careful as they should be – they are just not as aware of cyberthreats as they are of a slippery marble floor. Second, the bad guys are constantly trying harder to create a situation where you might actually have to use your cyber insurance. Third, insurance companies have not yet created handy tables that they can use to plug in a company and spit out a premium. All cyber insurers are not created equal. Selecting the cheapest company may be cheaper per incident, but selecting an insurer experienced with this type of policy may make your competition a more likely target.

Brett Trout

cyber insurance cyberliability Computer Security Institute cybersecurity cyberthreat

Malpractice Carrier Shuts Down Blawg

Law.com reports that a legal malpractice insurance carrier may be putting the kibosh on law blogs (blawgs). The article states that the insurance carrier, Executive Risk Specialty, a unit of Chubb, informed lawyer James Paone II, of Lomurro Davison Eastman & Munoz that lawyer blogging "is not a risk they are interested in undertaking."

Thankfully, this appears to be an isolated case. The situation may even turn out to be more of an issue of the use of appropriate disclaimers than a mandate on blawgs in general. Most of the major blawgs do not seem to have chimed in on the issue as of yet. Perhaps some of them are hoping the issue will simply fade away.

I would like to hear the blawgosphere's take on this, both from readers and writers. My hope is that this is an isolated instance of some "fire bad" insurance company Luddite not taking the time to determine that blogs are simply another interface lawyers have with their clients.

A key to avoiding legal malpractice claims is communication with the client. What is legal blogging but communication. Blawging not only hones a lawyer's communication skills, but mandates a certain level of understanding of current legal issues in the blawger's particular practice area.

Although this is just a guess, like patent attorneys, I would assume that top notch blawgers experience significantly fewer malpractice claims. More savvy legal malpractice carriers may actually prefer clients that blog, but are afraid to tip their hands. Perhaps they are hoping to keep their little secret, at least until profit driven competition starts offering blogging discounts to attract what is likely a lower risk class of clientele.

Thanks to Matt Krigbaum for the heads up on this story.

Brett Trout

blawg malpractice insurance