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Posts Tagged ‘#Professional Liability’

What Are The Ethical Rules For Legal Blogs In California?

Posted on: February 1st, 2019

By: Greg Fayard

If you are a California lawyer and are thinking about starting a blog, keep these points in mind:

  1. Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.
  2. A blog that is an integrated part of an attorney’s or law firm’s website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.
  3. A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.
  4. A stand-alone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising and is not subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the ethical rules and statutes.

See California Rules of Professional Conduct 7.1 and 7.2 and Business and Professions Code sections 6157-6159.2; State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion Interim No. 12-0006.

If you have any questions or would like more information, please contact Greg Fayard at [email protected].

The Expanding Duty to Defend

Posted on: May 24th, 2016

By:  Phil Savrin

An insurance company’s duty to defend is broader than a duty to indemnify in at least three ways.  First, a duty to defend is often based on the allegations of facts, even if the allegations are groundless, whereas a duty to indemnify is determined by the facts as confirmed by the evidence.  Second, even if the facts are not in dispute, a duty to defend can exist if the claim is arguably covered by the terms of the policy, whereas the duty to indemnify may require legal construction of the policy’s provisions.  Lastly, an insurer’s duty to defend can extend to the entire lawsuit – including non-covered claim —  whereas the duty to indemnify would be limited to covered claims only.

Increasingly, courts sanction insurers for not defending claims against insureds, such as by allowing insureds to recover consequential damages beyond the costs of defense, and even finding waiver of coverage defenses for a wrongful refusal to defend.  Even if the insurer defends, coverage defenses can be lost if they are not timely included in a reservation of rights.  And in some locales, an insured can treat a reservation of rights as tantamount to a disclaimer of coverage, allowing it to settle claims on its own and pursue the insurer for reimbursement or even bad faith.

Given this landscape, insurers should carefully consider not only whether there is a duty to defend, but how far it extends, the terms under which a duty to defend should be provided, and in close cases the consequences of rejecting a tender of coverage by the insured.