While not compulsory for lawyers in New Zealand, many choose to hold Professional Indemnity insurance.
Rule 3.4(b) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 requires a law practice to disclose its professional indemnity insurance (PI insurance) arrangements to its clients, including where PI insurance is not held.
The rule’s purpose is to enhance client care. Clients are able to engage lawyers with the comfort of knowing that in the event that something goes wrong, and the lawyer is at fault, there may be insurance available to meet a claim.
When the rule was being drafted, the Law Society was concerned to ensure that the disclosure obligation was not too onerous. Because of this the rule permits limited disclosure where the lawyer’s practice holds PI insurance that meets a minimum standard as specified by the Law Society. The minimum standard concerns the indemnity limit and the excess (or deductible). Both minimums need to be satisfied to permit limited disclosure.
Following a review in 2020, the minimum indemnity limit is whichever is the greater of:
PI policies ordinarily operate either on an 'aggregated' basis or an ‘any one claim’ basis. The former will respond to multiple claims made in a policy period provided the aggregate value of the claims met does not exceed the indemnity limit. The latter are more favourable. They will respond, to the extent of the indemnity limit, in respect of each separate claim made in the policy period.
This minimum indemnity limit is readily satisfied where the policy operates on an any one claim basis with no aggregate limit. The minimum indemnity limit is also met, in the case of a policy where claims are aggregated, provided the aggregate which exceeds the minimum indemnity limit automatically reinstates not less than once if fully eroded. If an aggregate policy also includes a per claim limit which is less than minimum indemnity limit, that policy will not meet the standard.
The purpose of an indemnity limit, for disclosure purposes, is to encourage lawyers to hold PI insurance that may be capable of covering more than one large claim made in a policy period.
The excess (or deductible) must not exceed the greater of 1% of the indemnity limit or $20,000.
Where full disclosure is required, the Law Society considers the lawyer needs to disclose that no insurance is held or (where there is a policy) the name of the insurer(s), the indemnity limit, whether the indemnity limit applies to each claim, and the excess payable.
The minimum indemnity limits referred to above are exclusive of defence costs. In 2013, the Supreme Court in BFSL 2007 Ltd v Steigrad held that the effect of s9(1) Law Reform Act 1936 is that the charge available to third party claimants has priority over defence costs in respect of amounts claimable under a costs-inclusive liability insurance policy.
Accordingly, law practices are advised to separately insure against defence costs in addition to their indemnity cover.
It is recommended that law practices consider insuring against cyber risk. A typical cover of this kind includes losses arising from:
It is recommended that lawyers in various circumstances consider taking out run-off cover to protect them against claims arising after the expiry of their standard cover. These circumstances include the following:
One type of run-off cover is as follows:
Cover is usually held for periods aggregating six years or for as long as the insured considers that there is a risk.
The changes are to reflect inflation in New Zealand since mid-2008 when the current minimum requirements came into force.
You will need to assess your current insurance arrangements against the revised ‘minimum standards’ as outlined above. If you do not meet the minimum standards, but still want to continue stating that you meet or exceed the minimum standards set by the Law Society, you will need to amend your insurance.
PI insurance cover which meets the present minimum standards and is in place at Tuesday 6 April 2021 may remain in force until the annual expiry date. At that time the cover must, if necessary, be extended to meet the above minimum standards, if disclosure is to be avoided.
You will only need to amend your client care information if you no longer meet the minimum standards and choose not to amend your insurance. In this instance you will need to provide full disclosure of your insurance arrangements.
Where full disclosure is required, the Law Society considers the lawyer needs to disclose that no insurance is held or (where there is a policy) the name of the insurer(s), the indemnity limit, whether the indemnity limit applies to each claim, and the excess payable.
It is important for lawyers to appreciate that they must make full disclosure where the indemnity limit provided for in the policy held by the practice does not satisfy the requirements of part (i) of the standard. Some lawyers have mistakenly regarded that requirement as satisfied where the indemnity limit is less than the minimum but when multiplied by the number of automatic reinstatements available the resulting figure is equal to or greater than the minimum required.