Are Impaired Lawyers Insurable ?
By Mark Bassingthwaighte
Multiple lawyers and firms have reached out to me over the years , each concerned about impairment and wanting to discuss their options . In light of these conversations , and with a desire to put one significant misconception to rest , I have asked and answered several questions as a way to share what my response has been .
What is your definition of the phrase “ lawyer impairment ” and why is this definition important ?
While I often define this phrase quite broadly , for the purposes of this article I am going to narrow it slightly . Lawyer impairment can encompass impairments that , to varying degrees , our society tends to stigmatize such as mental illness and chemical dependency . Lawyer impairment also includes long-term disabilities that can arise out of an accident or illness , or a terminal illness , for example , cancer .
This definition of lawyer impairment is important because any one of us can become impaired and we need to be more open and proactive about addressing impairment when it arises . The longer an impairment remains unaddressed , the more severe the impairment or its consequences can become .
Lawyers struggling with a mental health impairment are often quite resistant to seeking help due to a fear of being viewed as weak , crazy , or even dangerous ; as unable to cut it as a lawyer ; as different because there ’ s something wrong with them ; or of being told their problem is self-inflicted so they should just get over it . Those struggling with a chemical dependency face similar fears .
Those suddenly dealing with a disability or terminal illness sometimes hide the truth due to embarrassment ; a belief they have let others down and will be viewed as such ; and a fear they may no longer be competent or will be viewed as incapable .
When all of this is considered in the context of impact on livelihood , such feelings and fears can be a substantial roadblock to dealing with an impairment in a healthy way . It needn ’ t be this way .
Okay , so what is the significant misconception ?
The one significant misconception is there will be some type of negative repercussion if a firm ’ s malpractice insurer somehow learns one of its lawyers is impaired . Worries include being charged higher premiums , being denied continuous coverage , having someone forced into quitting the practice of law , being told how the firm must manage the situation in order to remain insurable , and the list goes on . The overriding concern is one of insurability .
Here ’ s the reality . There is no truth to any of this . Malpractice insurance applications don ’ t ask firms to disclose the number of firm attorneys who are currently struggling with depression , being treated for a terminal illness , or have an opioid addiction . The fact one or more firm attorneys may have an impairment in and of itself doesn ’ t matter . Should an insurer come to learn of an impairment , perhaps in the process of handling a claim , the concern will be whether the impairment is being responsibly addressed .
Think about it this way . There ’ s a huge difference between a lawyer who refuses to acknowledge he is an alcoholic and a lawyer who recognizes a drinking problem exists and seeks appropriate help . Life happens , and insurers understand that . It ’ s the fallout of failing to appropriately address the issues that can result in adverse consequences with your insurance coverage , not the impairment itself .
Look at it from an insurer ’ s perspective . Which firm would you rather insure : 1 ) a firm that has a culture of zero tolerance for even acknowledging that someone might be impaired , or 2 ) a firm that recognizes life happens and is culturally supportive of whoever might be dealing with an impairment ?
I assure you the zero-tolerance firm is a much higher risk . Denial , intentional ignorance , and intolerance create conditions that allow potential problems to fester and multiply . That ’ s high risk . Openness , empathy , and support leads to the exact opposite outcome . This is a far more acceptable risk .
Insurers are in the business of evaluating risk and you are in control of what that risk looks like . Stated another way , individuals and even firms are not always defined by the circumstances they find themselves in . They are more often defined by how they respond to the situation . Again , life happens . Rise to the occasion .
With this misconception put to rest , do you have any practical advice to share about dealing with an impairment ?
ALPS Risk Manager Mark Bassingthwaighte , Esq . Since 1998 , he has been a risk manager with ALPS , the nation ’ s largest direct writer of professional liability insurance for lawyers . In his tenure with the company , Mr . Bassingthwaighte has conducted over 1,200 law firm risk management assessment visits , presented numerous continuing legal education seminars throughout the United States , and written extensively on risk management , ethics , and technology . Mr . Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association , where he currently sits on the ABA Center for Professional Responsibility ’ s Conference Planning Committee . He received his J . D . from Drake University Law School .
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