How to Close Your Law Practice and Ensure You’re Covered by a Malpractice ERP

How to Close Your Law Practice and Ensure You’re Covered by a Malpractice ERP

By Christina Melia, Esq.

Lawyers want to make sure their malpractice coverage tail supports them well into retirement. Reducing your future liability requires a clean transition to retirement phase.

When it’s time to close the books on a fruitful practice, lawyers must strategize much like they would when building a legal case. A retirement playbook for attorneys must consider liability exposures even after the practice closes its doors. 

Prior to the pandemic, about 15% of lawyers planned to work after age 65.[1] Yet, many baby boomers are now retiring sooner than retirement age,[2] and the generation’s attorneys are no exception. To remain covered by insurance when retiring, malpractice liability requires lawyers to adhere to specific requirements. This is especially true if an attorney plans to practice law in any other capacity.

Extended reporting periods: What are they? Why are they important?

Owners of law practices secure malpractice insurance to protect their businesses — and their own assets — from financial damages resulting from any legal actions pursued by an aggrieved client or other party. Once a lawyer retires, it’s critical to maintain this liability coverage so that any claims made based on past exposures would potentially still be covered. An extended reporting period (ERP) or policy tail helps meet the objective of continued coverage. Ahead of retirement, make sure to obtain an understanding of your current policy limits, because the ERP will mirror the limits of your current policy.  

One individual retirement ERP, for example, allows the owner of a law practice to report claims, acts or omissions up to seven years after the firm closes. To qualify for a Retirement ERP at no additional premium, a lawyer must be at least 55 years old and have an active malpractice liability policy with that individual ERP for at least three years. Here are a few other requirements for this ERP coverage:

1. To activate the ERP, you must inform your carrier via letter of your retirement plans. If you don’t, you could jeopardize ERP coverage.

2. You must cease the practice of law to retain the policy tail. Here are some situations to avoid which will render your ERP null and void:

  • Acting in an “of counsel” capacity to another firm or client
  • Notifying an insurance carrier that the firm has been closed or sold and still practice law
  • Filing a notice or brief in a courthouse

3. There are some situations in which you can still use your legal expertise subject to carrier approval and be covered under the Retirement ERP:

  • You can represent yourself
  • You can act as a mediator between two parties
  • You can teach continuing legal education classes
  • You can act as executor of a will or trustee for a trust arrangement

In order to avoid these requirements or restrictions a firm can purchase an Optional ERP.

13 Things You Need to Know When Closing Your Law Practice: A retirement checklist

Plugging gaps for exposures is an important consideration while you practice law and after you retire, but there is more you need to do before officially closing your practice.

  1. Give clients and staff sufficient notice — in person, by phone or mail — that you’ll be retiring and ramp up collection activities for outstanding balances owed to your firm.
  2. Decide whether there is enough time to litigate open cases or if clients must be referred to another attorney. Outline the process for seeking new legal representation and if necessary, facilitate the search for a new attorney.
  3. Politely decline new cases and provide detailed instructions on how to proceed for existing clients whose legal matters will likely continue beyond your retirement date.
  4. Craft specific messaging around your retired status for inbound business phone calls and emails. Set up active phone numbers and email addresses for forwarding so that clients clearly understand where to go for files or additional information.
  5. Send notifications of retirement and instructions on next steps to a last known physical address for existing clients who cannot be located. Retain funds for these parties or consider turning the monies over to a common interest on lawyers’ trust accounts (IOLTA) fund or other government entity.
  6. Take careful measures on information safety and data security when transferring client files. Electronic files should be password protected and/or encrypted, which can help reduce the chance of compromise or data breach.
  7. Seek the court’s approval before removing yourself as counsel from any active case and refund any fees paid by clients for planned services that extend beyond your retirement date.
  8. Determine status of inactive client files and retain original client materials. Keep any information and/or trust account activity statements that your client may need at a later date.
  9. Maintain active client files as well as client trust account statements for the amount of time specified by the laws of states where you practiced.
  10. Send a trackable letter updating your new status to the Bar Association as well as state and local licensing bureaus.
  11. Analyze partnership agreements (if applicable) for concluding the relationship per the terms of the contract.
  12. Extend the liability portion of your malpractice insurance for claims that may arise from past activities. An extended reporting period (ERP) is often available as “tail coverage,” which can protect you at a prescribed dollar amount for a set number of years.
  13. Extend the liability portion of your malpractice insurance for claims that may arise from past activities. An extended reporting period (ERP) is often available as “tail coverage,” which can protect you at a prescribed dollar amount for a set number of years.

In your line of work, you understand the importance of attention to detail. That mindset must continue as you approach retirement. For more information on how you can mitigate risks when closing your law practice, contact Lawyer’s Protector Plan.

This information is intended for informational purposes only. Nothing contained in this publication is, nor is intended to be, legal advice. Lawyer’s Protector Plan is not liable for any injury, loss, damage, or expense arising out of or in connection with the use of this information.

[1] Clio, “A guide to Preparing for Lawyer Retirement,” November 24, 2021

[2] Pew Research Center, “Amid the pandemic, a rising share of older U.S. adults are now retired,” November 4, 2021