Note that the firm should cancel the Lawyers Professional Liability Insurance Policy when the firm split occurs. The firm should not wait until the anniversary date of the policy and then purchase the ERP. The basic reason for this is that once the firm splits up each lawyer in theory will be working for or as a new entity. The new entity needs to have coverage on the date that it starts operating.
Many carriers do offer “career coverage” for the individual attorneys that will protect the individual attorney’s past acts. Problem with this approach is if one of the partners stops their insurance in the future and the old Partnership gets sued, it could open up the liability to both partners and insurance for only one of the partners. If the former covered partner without the insurance is the one that committed the acts, chances are that both partners may have to face a claim without coverage.
The other alternative is that one or both attorneys try purchase “predecessor firm” coverage for the old firm on their new policy. Problem with this is that most lawyers professional liability define a “predecessor firm” as having a majority of the assets or attorneys coming from the dissolved firm. A 50/50 split does not give either former partner a majority.
This typical definition is from the current Medmarc Insurance Company policy:
“Predecessor Firm means the legal entity or sole proprietorship that was engaged in the practice of law to whose financial assets and liabilities the Named Insured is the majority successor in interest.”
Either the “career coverage” approach or the “predecessor firm” approach can open up the new firm’s Lawyers Professional Liability Policy to claims that were not the responsibility of the attorney as they were committed by the attorney’s former partner.
Even though it would appear that the cost of the ERP is expense, with purchasing the ERP for the old firm, it allows each partner to start with a new Lawyers Professional Liability Insurance Policy that does not cover past acts. Generally a policy without prior acts coverage is approximately 50% of the cost of a policy with prior acts coverage. The savings from years 1 to 5 with the new entity going through “Step Rating”, is approximately equal to the cost of the ERP. In the end, the “best” approach of covering the predecessor firm’s past acts costs no more than “poor” approaches that could lead to uncovered losses.