An essential aspect of legal malpractice insurance is the duty to defend and the selection of counsel in the event of a claim. Depending on the size of the law firm and the type of policy in place, the insurer may either take full responsibility for appointing defense counsel or allow the insured to have more control over the process.

Understanding the distinctions in your policy, such as whether the insured has the right to select their own counsel, is key to navigating the complexities of legal malpractice insurance.

Duty to Defend

A duty to defend policy means your insurance carrier is obligated to defend your business against liability claims.¹ You always need to read the fine print in your insurance policy to see your insurance carrier’s role in defense and selection of counsel.

Selection of Counsel

Larger law firms with substantial insurance policies usually have the option to choose their own lawyer for defense, within certain limits. However, for smaller and midsized firms, legal malpractice policies typically give the insurer the right to select the defense for the insured lawyer in the event of a claim, and some policies for these firms allow for mutual choice of counsel.

It can be advantageous for small and midsized firms to rely on their insurance carrier to appoint experienced counsel with an expertise in legal malpractice claims.¹

Policy Examples

The following are examples of the ways legal malpractice insurance policies are written in regard to selection of counsel.

1. The insurer has the duty to appoint counsel
   In these situations, the insurer typically chooses a defense attorney from a pre-selected “panel” of firms and attorneys that regularly do work assigned by the insurance carrier.²
2. The insured can select their own counsel.
   In this situation, the insured chooses the defense attorney and stays in communication with the insurance carrier. Policies with this language are typically written on a reimbursement basis, which means that the expenses are paid by the insured up until the deductible or retention is exhausted. Any additional expenses are then reimbursed by the insurer.
3. The insurer and the insured can mutually agree to counsel.
   In this situation, the insured typically chooses a defense attorney from a pre-selected “panel” of firms and attorneys that regularly do work assigned by the insurance carrier.² The selection made by the insured must be approved by the insurer.

The duty to defend and the selection of counsel are vital considerations in legal malpractice insurance policies. Clearly understanding these provisions can ensure that the legal malpractice coverage aligns with your needs, offering the best possible defense in the event of a claim.

When you’re assessing professional liability insurance policies, be sure to consult with insurance experts, like Pearl Insurance. Our tailored approach and expertise in the legal realm can help guide you in selecting the most suitable coverage for your unique practice.

Questions?

At the end of the day, Pearl Insurance is here for you. We work tirelessly to help you find a policy that fits your firm’s exact needs. Pearl takes our responsibility to protect your firm seriously and will always put people before profit.

Want to know more? Find out for yourself.
(800) 346-6680 | pearlinsurance.com/professional-liability-insurance/

These highlights are intended to present a general overview for illustrative purposes only. It is not intended to constitute a binding contract. Please remember that only the relevant insurance policy issued to a law firm can provide the actual terms, coverages, amounts, conditions, and exclusions for an insured.

¹“Does your insurance company have a duty to defend you during a lawsuit?” TechInsurance, 2022.

²“Do You Have a Choice of Counsel in Insurance Litigation?” Warner Norcross + Judd, 2024.