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April 04, 2007

Chubb Answers Attorneys' Concerns Regarding Insurability of Lawyer Bloggers - I'll Use It To Fertilize My Garden

Kevin O'Keefe of Lexblog posted the response he received in the form of a press release from Chubb after the blogosphere exploded with posts and commentary regarding Chubb's denial of insurance for those lawyers who blog.  You can read the press release here:

News from Chubb 

Chubb Group of Insurance Companies

15 Mountain View Road

P.O. Box 1615

Warren, New Jersey 07059

Contact: Jodi Dorman

(908) 903-2608

Email:

jdorman@chubb.com

Chubb’s Position on Law Firm Blogs

WARREN, NJ, April 4, 2007—"

Chubb Group of Insurance Companies was recently the subject of some confusing media reports about the company’s willingness to insure blogs. As a leading insurer of law firms across the country, we make it a priority to be on top of emerging trends that affect law firms," said James L. Rhyner, worldwide lawyers professional manager for Chubb Specialty Insurance. "Today, more and more law firms are establishing blogs. Chubb does insure this new form of communication—and will continue to do so within select parameters."

Depending on the way law firms use technology, a blog can create a minimal to significant level of added risk. "In that regard, managing risk associated with a blog is an appropriate part of the underwriting function—and Chubb takes its underwriting responsibilities seriously," said Rhyner.

Chubb has found that law firm blogs fall into two general classes: informational and advisory.

An informational blog presents information or offers a forum for discussing issues in a neutral, unbiased way. This type of blog offers information similar to that found in an article or presented by an individual in a seminar—informational blogs do not provide advice to a specific individual on a unique matter. Typically, these blogs pose a minimal level of risk from Chubb’s underwriting perspective.

In an advisory blog, however, a law firm offers advice. By its nature, then, it increases the risk of a malpractice lawsuit against the firm. An advisory blog can potentially establish an attorney-client relationship, possibly bypassing such safeguards as determining the suitability of a potential client and checking for possible conflicts of interest. As always, Chubb’s underwriters will evaluate each submission on its own merits.

Chubb provides insurance coverage for 90% of the law firms listed in The American Lawyer’s AM Law 200. It also offers brokers and law firm customers free loss management guidance, including A Lawyer’s Guide to Managing E-Lawyering Risks and Managing Legal Malpractice.

The member insurers of the Chubb Group of Insurance Companies form a multi-billion dollar organization providing property and casualty insurance for personal and commercial customers worldwide through 8,500 independent agents and brokers. Chubb's global network includes branches and affiliates throughout North America, Europe, Latin America, Asia and Australia.

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I find their response extremely interesting. I have never heard of an 'advisory blog.'

What it seems to me is that Chubb is creating their own definition of the blog they fear versus the reality of what a blog is and does. Any practice-area based blog is informational and I have yet to see a blog which advises unknown clients. There are blogs which can have a forum component providing give and take with the author but I have yet to see an author give 'advice' that establishes an attorney client relationship.

But my best guess is the all important language in their letter which gives them the opportunity to review each blog on a case-by-case basis to determine insurability.  This language allows them to determine where each blog falls on their pendulum of risk, minimal to maximum, and as to whether or not the blog author is complying with the current rules governing 'advertising' within their state such as including the much disputed disclaimers as well as where blogs fall within overall marketing strategies, which have inspired recent court challenges, specifically as to whether blogs are traditional advertising, such as in New York.

If attorneys are victorious in New York, can the insurance companies go in the back door and dictate compliance based upon their own nonsensical criteria or withhold insurance? Imagine the insurance companies dictating where and how big your disclaimer must be positioned on your blog?  Insurance companies dictating the content and tone of your blog?

Quite frankly, it is the worst kind of fabrication to manipulate the legal professions' use of this new medium. It is a blatant attack against free speech in the name of 'risk' and insurance companies are at the helm. And then take it a step further. You rebel, drop your insurance, but wait...you are in an state that requires malpractice insurance? What next...who you are permitted to take on as a client?

The lawyer injured the most by this type of behavior, if it is permitted, is the solo.  Blogs give solos a leg up in the competitive legal world because they can react the quickest to new technologies and capitalize on their advantages when targeting their potential audience.  It is a tool that permits solos to zoom forward at warp speed leaving the larger firms in the dust.  Threatening a large law firm's insurability is not intimidating to large firms because, in my opinion, I don't think large firms really profit from having blogs in the same way a solo does.  If they lose this tool, big deal.  However, it can be the lifeblood for a solo and this type of intrusion by insurance companies cannot be abided especially when the answer shows blatant manipulation and fabrication and a deliberate total lack of understanding of the medium.

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