2015 Annual Convention

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2015 Annual Convention

Senior Lawyers Section Legal Update –

Tail Insurance/Estate Planning for Retiring

Lawyers/Ethical Considerations in Closing a

Law Practice

Senior Lawyers Section

1.5 General CLE Hours

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Speaker Biographies

Daniel J. Hoffheimer

OSBA Certified Specialist in Estate Planning, Trust, and Probate Law Taft, Stettinius & Hollister

Cincinnati, Ohio

Mr. Hoffheimer received his BA from Harvard College and JD from the University of Virginia where he was editor in chief of the Virginia Journal of International Law. His professional memberships include the Ohio State Bar Association, Ohio State Bar Foundation (Fellow), American Bar Association, American Bar Foundation (Life Fellow), Cincinnati Bar Association, Cincinnati Bar Foundation (director), and Cincinnati Estate Planning Council, among others. Mr. Hoffheimer is a partner with his firm and concentrates his practice in the areas of estate planning, trust, and probate law; nonprofit and charitable organizations; family businesses; elder law and guardianships; estate and gift taxation; charitable giving; and probate court litigation. He is a Fellow of the American College of Trust and Estate Counsel and is an OSBA Certified Specialist in Estate Planning, Trust, and Probate Law. Mr. Hoffheimer also serves on the editorial advisory board of the Probate Law Journal of Ohio. He serves or has served on many nonprofit boards including chair of the Cincinnati Symphony Orchestra and founding co-chair of the National Underground Railroad Freedom Center. Mr. Hoffheimer was appointed by the Chief Justice of Ohio to the Ohio Commission on Racial Fairness and by the Mayor of Cincinnati to the Consumer Protection Advisory Board, and he has received the Distinguished Alumni Award from Leadership Cincinnati of the Greater Cincinnati Chamber of Commerce and the Trustee’s Award from the Cincinnati Bar Association. For additional information, please visit www.taftlaw.com.

Gary J. Leppla

Leppla Associates, Ltd. Dayton, Ohio

Heading a litigation firm in Dayton, Mr. Leppla is a Board Certified (NBTA) Civil Trial Lawyer. Leppla Associates routinely represents injured parties in tort claims, including medical malpractice, as well as business clients in litigation throughout Ohio. Mr. Leppla represents both bar associations and attorneys in matters of professional ethics, including representation before the Board of Professional Conduct and the Ohio Supreme Court. He is a member of The Florida Bar, where he serves as a member of the Professional Ethics Committee. Mr. Leppla is a past president of the Ohio State Bar Association (2007-2008). For additional information, please visit www.LepLaw.com ([email protected]).

Gretchen K. Mote

Director of Loss Prevention Ohio Bar Liability Insurance Co. Columbus, Ohio

Ms. Mote received her BA from Capital University and her JD from Capital University Law School. Her professional memberships include the Columbus Bar Association, Ohio State Bar Association, Franklin County Bar Association, Women Lawyers Association, and the Ohio Association of Civil Trial Attorneys. Ms. Mote is Director of Loss Prevention for Ohio Bar Liability Insurance Company. She is responsible for coordinating loss prevention articles and publications for OBLIC, speaking about malpractice prevention to lawyers and law students, assisting policyholders with loss prevention ideas and coordinating presentations and the annual seminar for OBLIC. Ms. Mote is the author of the “Law Practice Management” chapter of the OSBADesk Manual, and the “Malpractice Issues” chapter of Practical Legal Ethics. She was the recipient of the Ohio Association of Civil Trial Attorneys’ Distinguished Service Award.

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Tail Insurance • i

Chapter 1:

Tail Insurance

Director of Loss Prevention

Ohio Bar Liability Insurance Company Columbus, Ohio

Chapter 1:

Tail Insurance

Director of Loss Prevention

Ohio Bar Liability Insurance Company Columbus, Ohio

Disclaimer

These materials are made available solely for loss prevention purposes. They include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This presentation and these materials do not establish, report, or create the standard of care for attorneys. These materials are not a complete analysis of the topic and should not be construed as providing legal or ethics advice. Each person should conduct her or his own appropriate legal research in this area.

I. What Is “Tail Insurance”?

“Tail insurance” is the popular name for an Extended Reporting Endorsement or Extended Reporting Coverage.

This is a policy option that provides insurance protection for any claim first made and reported to the carrier subsequent to the termination date of the expiring policy for any act, error or omission occurring prior to the termination of the policy, and otherwise covered by the policy.

II. Why Is It Called “Tail” Insurance?

Lawyers professional liability insurance is called a “long-tail” line of insurance because an act, error or omission may take place today, but a claim arising from that act, error or omission may not be discovered or made against the lawyer for a number of years. The claim then “tails” the actual act, error or omission.

III. When Would I Buy “Tail Insurance”?

Upon termination of the current policy, most lawyers’ professional liability insurance policies provide an option to the insured to purchase a “tail” or an extended reporting endorsement or extended reporting coverage. This endorsement or coverage extends the time within which to report any future claim arising out of a covered act, error, or omission that occurred while the insured carried claims-made and reported insurance.

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1.2 • Senior Lawyers Section Legal Update

If a lawyer wishes to purchase “tail” coverage it is critical to inquire about it immediately upon termination of the current policy or the option may not be available.

IV. What Is the Policy Period for “Tail Insurance”?

An extended reporting endorsement is for a specific period of time, referred to as an extended reporting period. Typically an extended reporting period is for one year, two years, three years, or unlimited years. This is decided when the tail is purchased and cannot be increased at a later time.

Some policies may have an “automatic” tail. This depends upon the specific policy language. Many policies provide a limited period of time in which to report a claim after a policy expiration date, usually between 30 to 60 days. Some polices offering such coverage require that the claim be first made before the expiration date of the policy, but provide additional time after expiration to report the claim to the insurer.

A few policies will provide “free” extended reporting coverage to an insured for a much longer period of time, provided certain conditions are met. These conditions usually include a certain number of years insured by the given insurer, and retirement from law practice by the lawyer. However, such policies are the exception, not the rule.

At the expiration of the “tail” there is no longer any coverage.

V. Why Would I Need “Tail Insurance”?

Lawyers' professional liability insurance provides coverage on a “claims-made and reported” basis. To have coverage, the lawyer must have a policy in effect when the claim is first

made and reported to the carrier. Some polices may be “claims-made” forms, where the report to the insurance company has to be provided within some time period during or after

expiration of the policy period.

“Claims-made and reported” coverage is different from “occurrence” coverage. An “occurrence” policy provides coverage for claims arising from acts, errors or omissions occurring during the period of time covered by the policy, regardless of when the claim is actually made. With “claims-made and reported” coverage, there is no coverage after the expiration date of the policy.

If a lawyer is retiring and leaving the practice of law, entering government service, changing law firms, in a law firm that merges with another firm, in a firm that dissolves or otherwise qualifies, and desires to have coverage for any claims arising from acts, errors or omissions during the time they practiced and were covered under an applicable policy, “tail insurance” needs to be purchased to extend the period of time to report such claims. Otherwise, at the expiration of the policy, there is no longer coverage.

VI. When Might I Purchase “Tail Insurance”?

A. Lawyer leaves law firm for other employment.

If lawyer leaves the law firm, perhaps to become a judge, enter government service or some other employment and the law firm remains an ongoing entity, the lawyer is usually covered as a former member or employee of the firm for services rendered while with the firm, if the firm

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retains its claims-made coverage. The risk here is that if after the lawyer leaves the law firm and the firm later divides or dissolves and does not buy “tail insurance” for the firm upon its

termination, then there may be no coverage for the lawyer for any claim made thereafter. The departing lawyer may have the option to buy an “individual tail” when leaving the law firm. This option may be available when a lawyer is leaving private practice and the coverage is conditional upon there being no other coverage to respond to a claim against the lawyer. B. Lawyer leaves one firm and joins another firm.

In this situation, a lawyer will want to have coverage for claims arising from acts, errors or omissions of the lawyer prior to joining the new firm and the date of that firm’s current claims made and reported policy. This is sometimes referred to as “Career Coverage.” Such coverage may be limited as in most cases, the new firm’s insurance carrier will not agree to provide coverage for those claims.

The lawyer should carefully check if the new firm’s insurance carrier will provide this coverage. Some carriers will offer prior acts coverage under a current policy, if there was prior claims made coverage and there are no circumstances that impair offering the coverage.

Note: Prior Acts Coverage refers to a period going back in time for which a claims-made policy will cover claims made arising from acts or omissions that occurred back in time. This term generally has the same meaning as the “retro date” or retroactive date.

If the lawyer is not able to purchase prior acts coverage under the new firm’s policy, the lawyer going to the new firm may be able to purchase “tail insurance” when leaving the former firm. C. Lawyer is in a firm that dissolves.

If the law firm is dissolved tail coverage should be considered at the time the firm breaks up. Be aware that “tail insurance” is usually available in relation to a previously issued claims made and reported policy and not as a “stand alone” policy. If a lawyer from the dissolving firm is continuing to practice, the lawyer will want to discuss how this impacts current claims made and reported coverage.

D. Lawyer retires and leaves the practice of law, becomes disabled or is deceased. For a lawyer retiring and leaving the practice of law, or who becomes disabled or is deceased, the purchase of “tail insurance” should be considered.

VII. Can I Purchase “Tail Insurance” While I Wind Up My Practice?

“Tail insurance” only extends the period in which a claim may be reported. “Tail insurance” does not cover any active practice of law.

To purchase “tail insurance” a lawyer should have no active cases, clients, or matters. If a lawyer is not actively practicing as many hours or winding down the practice, it may be possible to purchase a part-time policy. This should be carefully discussed as it may impact purchase of the “tail” policy in the future.

VIII. Can “Tail” Cover Times When I Did Not Have Insurance?

Most insurers will not cover claims arising from a period of time when a lawyer practiced “bare” or without lawyers professional liability insurance. There is no coverage generally for such time periods under claims made and reported policies or under “tail” coverage.

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IX. How Expensive Is “Tail Insurance”?

The cost of “tail” coverage should be discussed with your Underwriter. Generally, it is a multiple of your current policy premium, determined by the number of years you decide to have the “tail” coverage.

Some insurers allow the premium for “tail insurance” to be paid in installments. Be aware that if an installment premium is not paid, the “tail” will be cancelled.

The lawyer may want to consider the option of different limits of liability than the expiring policy, if available. Careful consideration of the potential impact of this must be given.

The limits of liability for “tail” coverage generally are reduced by any payments made under the current policy to which the extending reporting coverage or “tail” is appended. Note: OBLIC is one of the few companies that will reinstate the full limit of liability under a tail.

X. Other Considerations

“Tail” insurance can provide “peace of mind” that the lawyer will have continuing coverage for potential claims made and reported after retirement or other career changes. It can provide a measure of protection for the assets of the lawyer.

Be aware that Sale of Practice agreements often require that the lawyer maintain legal

malpractice insurance. If the lawyer is retiring and leaving the practice of law, this could mean purchase of “tail insurance.”

XI. The Final Word

Any questions about “tail insurance” should be discussed with the insurance carrier providing the lawyers professional liability insurance. The lawyer should work with their Underwriter to learn how that carrier’s “tail insurance” works, the options available and the premium involved. This is an important issue which should be given adequate time and consideration. If this is something you are thinking about, please contact your lawyers professional liability insurance carrier soon!

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Retirement Planning from the Probate Lawyer’s Perspective • i

Chapter 2:

Retirement Planning from the

Probate Lawyer’s Perspective

Daniel J. Hoffheimer Taft Stettinius & Hollister Cincinnati, Ohio

Chapter 2:

Retirement Planning from the

Probate Lawyer’s Perspective

Daniel J. Hoffheimer Taft Stettinius & Hollister Cincinnati, Ohio

The Economic Impact of the Aging of the Legal Profession

Non-Tax Reasons for Using Trusts

A. Introduction. B. Control of property.

C. Trust as a private guardianship alternative. D. Trust for minors and for adults.

E. Protection of property from creditors. F. Protection of property for grandchildren. G. Time of trust distribution.

H. Summary of trust purposes. I. Funding your trusts.

J. Your trustee. K. Conclusion.

Checklist: Asset Protection

What Attorneys Should Know About Estate and Trust Planning for

Themselves and the Future of Their Law Practices

A. Estate planning – the basics. B. Retirement planning.

C. What kind of legacy are you leaving if you do not plan for a successful transition from active practice to retirement?

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D. Will provision for sole proprietorship.

E. Power of attorney provision for sole proprietorship.

F. Memorandum to guide executors and family in event of death. G. State of Ohio living will declaration – notice to declarant. H. Donor registry enrollment form (optional).

I. State of Ohio Health Care Power of Attorney.

J. Ohio appointment of representative for disposition of bodily remains, funeral arrangements, and burial or cremation goods and services.

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Ethical Considerations in Closing a Law Office • i

Chapter 3:

Ethical Considerations in

Closing a Law Office

Gary J. Leppla Leppla Associates, Ltd. Dayton, Ohio

2015 Annual Convention