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What are my insurance options if I need to take a temporary leave of absence from practice?
You can apply for Exemption ‘C’ under the LAWPRO Program if you are taking a temporary leave of absence from practice. The leave may be up to five years for family reasons or illness and two years for other reasons. This exemption is for a temporary leave of absence only, meaning you must intend to return to practice. It is not available if you wish to pursue alternative employment and there is no coverage for professional services provided during your period of exemption except for the following:
- pro bono services provided through an approved pro bono project associated with Pro Bono Ontario;
- certain mentoring services; and
- certain services as estate trustee, trustee for inter vivos trust, or attorney for property, provided you have completed an application.
How does my coverage change?
If you apply part way through a policy year, you keep the coverage options (including deductible) you have in place and then revert to the standard coverage at the outset of the next policy year if you remain on exemption.
Lawyers who apply at the outset of the policy year are provided with the full coverage of $1 million per claim/$2 million in the aggregate and the standard deductible of $5,000.
Protecting yourself from a claim while on leave
LAWPRO claims statistics show that lawyers taking extended leaves of absence face increased vulnerability to claims as a result of inadequate file supervision, transfer procedures, and missed deadlines. Litigators should be mindful of the 5-year deadline to set matters down for trial under Rule 48.
Files left unattended can trigger a “cluster” of administrative dismissals and is a scenario that LAWPRO sees all too frequently. In various areas of practice, claims have arisen when the departed lawyer has failed to ensure active files are being monitored by staff or transferred to a colleague.
Here are some tips to avoid the files you leave behind becoming a malpractice claim:
Develop and follow procedures for seamless transfer of files
Failing to follow firm file transfer procedures can lead to unnecessary confusion. A file may have languished because damages are minimal and/or there are difficult issues of liability. When going on leave, make sure to be frank with the successor lawyer or the lawyer who will be assigning the files as to why the matter is in the state that it’s in, and what steps need to be taken.
Write detailed file transfer memos
Disorganized files can result in details being missed. A good practice is to include a detailed file transfer memo for each file.
Ensure employees are appropriately supervised
Lawyers should not be relying solely on staff to handle files in their absence: at the end of the day it is the lawyer who will be facing a malpractice claim.