Have you seen this yet? This is the first malpractice insurance policy exclusion language I’ve seen that pertains specifically to our electronic world! Read this language:
We will not pay for injury or damage, directly or indirectly, arising out of, caused by, contributed to by or resulting from any Functioning, nonfunctioning, misfunctioning, availability or nonavailability of the internet or similar facility; or any intranet or private network or similar facility; or any website, bulletin board, chat room, search engine, portal or similar third party application service;
Alteration, corruption, destruction, distortion, erasure, theft or other loss of or damage to data, software, information repository, microchip, integrated system or similar device in any computer equipment or non-computer equipment or any kind of programming or instruction set;
Loss of use or functionality, whether partial or entire, of data, coding, program, software, any computer or computer system or other device dependent upon any microchip or embedded logic and any ensuing inability or failure of the insured to conduct business.
With the experience of 9-11-01 behind us, with the media reporting on the many lawyers frequently being attacked by angry clients and disappointed adversaries, and with natural disasters regularly occurring, it seems to me that a disaster recovery plan is essential for every lawyer! Failure to plan for disaster recovery is planning to fail to be prepared. (Paraphrasing John Wooden, former UCLA basketball coach and guru of life.) With the use of today’s technology, it should be much easier to recover. (For example, have two servers, each one is disparate geographic locations.) When a lawyer/law firm fails to recover quickly, clients will be prejudiced. It seems to me that such prejudice is the basis of a malpractice action, an action that should be sustainable when the lawyer fails to use today’s technology. And, if the insurance carrier denies liability, then the lawyer is openly exposed for the full liability! To me, this is really scary ... it is more than the lawyer merely going "bare."
Check out your insurance policy.
Listen to our April, 2004 issue of Law Practice Management Review: The Audio Magazine for Busy Attorneys. We conducted an interview with Dr. Dana Picore about security and how lawyers can protect themselves against crazed clients and adversaries.
