Cooperation and Participation: Key Components of Legal Malpractice Defense

When a legal malpractice claim arises, an attorney’s professional liability policy provides an essential safety net. However, that protection is not unconditional. One of the most significant obligations imposed on insured attorney is the duty to cooperate with their insurer throughout the defense of a claim. Failure to do so can jeopardize coverage and the defense at the very moment it is most needed.

Most legal malpractice policies expressly require insureds to cooperate in the investigation, defense, and resolution of claims. This duty typically includes promptly reporting claims or potential claims, providing complete and accurate information, preserving relevant documents, attending depositions and hearings, and assisting defense counsel as requested. Insurers rely on this cooperation to evaluate exposure, develop strategy, and fulfill their contractual obligation to defend.

Problems arise when insureds act independently or inconsistently with the defense being provided. Examples include withholding documents, failing to respond to insurer inquiries, making unilateral admissions, engaging separate counsel without notice, or refusing to participate meaningfully in discovery or settlement discussions. Even conduct that appears well-intentioned—such as attempting to “fix” an issue directly with a client—can undermine the defense and expose the insured to coverage disputes or jeopardize the insurer’s ability to effectively defend the insured. Additionally, prolonged delays, incomplete disclosures, or outright refusal to assist can provide insurers with a basis to limit or deny coverage, particularly where such conduct impairs the defense or increases exposure.

Below is a checklist for any insured to run through when a malpractice claim is made. This list will help you ensure that you are doing your part to effectively cooperate with the insurer and that a positive resolution is reached for you, as the insured.

Insured Cooperation Checklist

1. Immediate Notice and Preservation

Provide prompt written notice of the claim or potential claim in accordance with policy requirements.
Do not delay notice while attempting to resolve the matter directly with the claimant or client.
Preserve all potentially relevant materials, including emails, electronic files, calendars, billing records, and drafts.
Suspend any routine document destruction policies that could affect claim-related materials.

2. Full and Accurate Disclosure

Provide complete and truthful information to the insurer regarding the facts, timeline, and procedural posture of the matter.
Disclose all related matters or prior incidents that could be deemed connected to the claim.
Avoid minimizing, characterizing, or editorializing facts—stick to objective information.
Promptly supplement disclosures if new information becomes available.

3. Communication and Responsiveness

Respond promptly to insurer and defense counsel requests for information or documents.
Designate a point of contact within the firm to ensure timely and consistent communication.
Keep the insurer informed of any developments, including related proceedings or client communications.
Document communications with the insurer and defense counsel for clarity and accountability.

4. Defense Counsel Cooperation

Cooperate fully with appointed defense counsel, including preparation for depositions, hearings, and trial.
Make witnesses available as reasonably requested.
Provide requested documents and records in an organized and timely manner.
Avoid independent defense strategies without insurer knowledge or consent.

5. Avoid Unilateral Actions

Do not admit liability, fault, or damages without insurer approval.
Do not settle or attempt to resolve the claim independently without the insurer’s written consent.
Do not incur defense costs or retain separate counsel without confirming coverage implications.
Avoid direct communications with the claimant unless approved by defense counsel.

6. Participation in Strategy and Resolution

Participate meaningfully in defense strategy discussions when requested.
Attend mediations, settlement conferences, and meetings as required.
Consider settlement recommendations in good faith, even if disagreement exists.
Provide timely authority or feedback when settlement opportunities arise.

7. Ongoing Compliance

Continue cooperation throughout the life of the claim, not just at its inception.
Update the insurer on firm changes (e.g., departures, dissolutions, or conflicts) affecting the defense.
Review policy obligations periodically to ensure ongoing compliance.

For insured attorneys, the takeaway is straightforward: once a claim is made, transparency and collaboration are essential. Early and ongoing communication with the insurer and appointed defense counsel helps protect coverage, strengthens the defense, and minimizes the risk of unnecessary disputes. In the legal malpractice context, cooperation is not merely a contractual formality—it is a critical component of an effective defense strategy.

Questions? Contact Jared Burke for more information.