Several clients have recently asked whether they have the right to select their own defense attorney when facing a legal malpractice claim. The answer depends on the language of your legal malpractice insurance policy and understanding those provisions can help you avoid costly mistakes.
Facing a claim is not only a professional risk but an emotional and unsettling experience. In the heat of the moment, some firms act before notifying their insurance carrier and retain a defense attorney without approval. While understandable, this can create significant issues. If the attorney is not on the insurer’s approved list, your firm may be fully responsible for those legal fees, and the claim may be delayed or denied in part.
Below, we break down how choice of counsel typically works in malpractice insurance for law firms and your available options.
What the Policy Typically Says
Here are two examples of common policy language regarding the insurer’s role in appointing defense counsel:
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“The Company shall have the right to appoint counsel with the consent of the Named Insured, which consent shall not be unreasonably withheld, and to make such investigation and defense of a claim as it deems appropriate.”
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“While we welcome your input in selecting defense counsel, we retain the exclusive right to make that selection. Our determination as to the reasonableness of claim expenses is conclusive.”
In both examples, it’s clear that the insurer retains final authority over the selection of your defense attorney, even if they allow for some input from your firm.
The Choice of Counsel Endorsement
If you have a specific legal malpractice defense firm you want to represent you, the first step is to check whether they’re already on your insurer’s pre-approved panel of defense attorneys. If they aren’t, your policy may still allow for a choice of counsel endorsement.
This endorsement gives your firm the ability to select your own attorney, provided:
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The insurer approves your requested counsel
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The firm meets certain qualifications (e.g., experience in defending legal malpractice claims)
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The selected attorney agrees to follow the insurer’s litigation management guidelines and billing rates
Not all insurers offer this endorsement, and not all firms will qualify—so it’s important to coordinate with your broker in advance.
Indemnification Policy: Another Route
Another path to gaining greater control over your defense is opting for an indemnity-based legal malpractice policy. Unlike the more common “duty to defend” model, indemnity policies place the responsibility of retaining defense counsel on your firm.
The insurance company will issue a set of guidelines outlining:
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Maximum reimbursable hourly rates
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Reporting protocols and claim documentation standards
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Billing and payment procedures
Drawback: Your firm will need to pay legal costs up front and seek reimbursement after the fact, which can present a cash flow burden. This tradeoff must be weighed carefully, especially for smaller firms.
In Conclusion
Whether you’re in the early stages of shopping for legal malpractice insurance, or reviewing your current policy after a recent claim, it’s important to know your rights and limitations regarding defense counsel selection.
While most standard malpractice policies reserve the insurer’s right to appoint counsel, you may still have options—such as requesting a choice of counsel endorsement or shifting to an indemnification-based model. Understanding your coverage before a claim arises can give you peace of mind and control when it matters most.
Contact PSA for Guidance
PSA works closely with law firms across the Mid-Atlantic to help them secure and customize their professional liability insurance. If you’re uncertain about your current policy or want to explore flexible options for defense counsel, we’re here to help. We’ll walk you through your options and ensure your legal malpractice insurance supports your firm’s defense strategy and long-term risk management. Contact us today.
