McGowanPRO Professional Liability Blog / Resources / Articles

Insurance claims for data theft worldwide jumped 56% last year

Posted by Tom Henell on Tue, Aug 16, 2011 @ 08:57 AM

According to a recent newsletter from Willis, data production is growing at an exponential rate (currently compound annual 60%) and that claims for data theft worldwide jumped 56% last year.  

In our experience, questions regarding insurance coverage for data security and identity theft are increasing daily.  Professional liability policies are intended to cover errors or omission in the delivery of professional services.  The question that often arises is, if data is lost or stolen outside the office (i.e. theft of a laptop computer) is there a connection to the delivery of professional services?

In addition, first-party expenses often triggered by state security breach laws are generally not covered under a professional liability policy.  This is the direct cost of client notification and credit monitoring that can run between $5 - $50 per client.

Download NAPLIA's White Paper on Information Security & Cyber Liability to learn more about essential steps to protecting your firm.

Tags: accountants, Data Breach, Information Security

General Release of Professional Claims

Posted by Tom Henell on Fri, Jul 29, 2011 @ 02:15 PM

Unfortunately there are scenarios that may arise where your client, and you, do not see eye to eye.  Just one example of this may be a client who has not paid for services.  Of course you are not in business to provide services for free, but you understand that filing a suit for fees commonly leads to allegations of professional liability.

In this scenario, negotiating a reduction of fees may be in your best interest.  In return for reducing your fees it is wise to require the client to sign a general release.

A general release is a legal document that acts to terminate any legal liability between the releasor (your client) and the releasee (you).

Prior to offering a release to a client please consider:

1. A release of a claim, or potential claim, should never be made without previous insurance carrier approval.

2. A release is a contractual document, and likely to be construed according to the law of the local jurisdiction.  It is recommended you consult local counsel to review your final document to ensure that it is consistent with local law. 

The following general release template was developed for illustrative purposes only by Ralph Picardi, Esq. of Lapping & Picardi, LLP exclusively for use by clients of North American Professional Liability Insurance Agency, LLC (NAPLIA).

If you have questions please do not hesitate to contact your NAPLIA representative.

Sample general release template (word document)

Compelling Reasons to consider Employee Dishonesty

Posted by Tom Henell on Fri, Jul 15, 2011 @ 08:23 AM

As a provider to professional service firms, we continue to see an alarming increase in employee related fraud claims.

Although these claims are not limited to a particular size of firm, small companies can be especially effected by theft and embezzlement because they can’t afford extensive safeguards and aren’t large enough to absorb losses. Consider too, your Office Package policy (BOP) likely does not provide coverage if the theft is of your client funds, or if the theft is by a third party (non employee). 

The increasing trend in workplace fraud and the relatively low cost of these policies, makes Employee Dishonesty Insurance a coverage that we recommend highly to each of our clients.  Here are more compelling reasons to consider this coverage:

Fraud & Embezzlement is on the rise

According to the Association of Certified Fraud Examiners (ACFE), business losses from fraud and embezzlement exceed $400 billion per year.

It can happen to you

Most employers have a hard time imagining their employees stealing from them, but the reality is many businesses suffer significant financial loss at the hands of long-time trusted employees.

Coverage for your client’s funds

For most (accounting & financial) firms, your exposure is not your own assets, but those funds which you have control of for your clients.

Employee dishonesty policies can provide coverage for theft (by your employees) of client funds in your control.

Crime Coverage

In addition, Employee Dishonesty offers optional crime coverage for theft of your property by non-employees such as forgery, burglary, robbery, and computer fraud.

Automatic ERISA Bond Coverage

Many of the Employee Dishonesty policies that we offer include ERISA Bond coverage.  This eliminates your need to maintain a stand-alone ERISA bond.

Employee Dishonesty Insurance protects the employer (you) from financial loss due to the fraudulent activities of your employees.

More Employee Dishonesty FAQ's

More Information

Tags: accountants, cpas, employee dishonesty

How CPAs Can Recognize & Avoid Unauthorized Practice of Law

Posted by Tom Henell on Thu, Jun 30, 2011 @ 09:34 AM

CPAs cannot practice in any area that falls under the purview of “the law.” It is prohibited. Therefore, it is important for CPAs to identify the boundaries established for the practice of law in those areas where CPAs might find themselves working, whether on their own or in collaboration with counsel. A clear understanding of this boundary can keep a practitioner away from a particularly nasty form of trouble, the unauthorized practice of law. A clear understanding of the demarcation can help facilitate collaboration and strategic alliances between attorneys and CPAs that best serve their clients.

Read the full article by Jonathan S. Ziss, JD, partner with Goldberg Segalla LLP in Philadelphia

Tags: accountants, cpas, professional liability

Understanding professional liability policy conditions

Posted by Tom Henell on Fri, Jun 24, 2011 @ 10:09 AM

Understanding your Professional Liability policy Conditions is an essential element of your professional liability coverage.

NAPLIA partner, Stephen Vono, outlines when being helpful can backfire.

Many professional liability policies have a condition that prohibits (except at your own cost) making any voluntary admission of liability, settle any claim, assume any obligation, and/or agree to any means of resolution to a dispute without carrier consent. Violation of a policy condition may impact your rights under your policy and limit coverage.

Read Stephen's story to learn more...

Tags: accountants, cpas, professional liability

Naming your client as an additional insured

Posted by Tom Henell on Fri, Jun 17, 2011 @ 10:33 AM

It is common for client contracts to contain insurance provisions. Typically, these provisions will require you to maintain certain types of insurance (professional liability, general liability, workers compensation, etc.), and minimum limits of liability for each. In addition, the contract may go on to outline specific conditions often including that the client be named as an additional named insured on your insurance policies. Unfortunately, contracts will sometimes apply these conditions on a blanket basis without regards for the individual nuances of each insurance product.

Read our article on "Naming your client as an additional insured, and other contractual conditions" to understand industry standards, and items to review in your client contracts.

Make sure you subscribe to our Blog for all updates.

Tags: liability, professional liability

Laptop Security – Important Steps to Mitigating Risk

Posted by Tom Henell on Wed, Jun 08, 2011 @ 03:00 PM

Modern technology allows us to enjoy a more mobile workforce.    With Laptops, Tablet Computers, Smart Phones, and other devices we are able to access work from virtually any location.  However, these devices also expose companies to new risks previously not experienced by a desk-bound workforce.

Here are several simple steps to consider to protect your mobile computers, and mitigate your personal, and professional exposure.

  1. Identify your potential exposures.  The first step is to simply acknowledge that you may have weaknesses in your network security and take the time to identify them.  This process will require some research on your part, but is well worth the time.  For more information, download our recent White Paper: Information Security & Cyber Liability: Essential Steps to Protecting your Firm
  2. Use visible locks on laptops in your office.  A number of cable style locks are available to secure laptops to a desk when in your office.  These will not prevent a determined burglar, but a high percentage of laptop thefts are snatch & grab and can be prevented with a simple lock.
  3. Treat your laptop like a wallet or purse.  You would not leave your wallet sitting on your desk when you leave for the night, nor would you leave it sitting in the backseat of your car.  Laptops are prime targets for theft and simply keeping them out of sight will remove the temptation.  Lock them in your desk, and put them in your trunk if necessary.
  4. Do not store client data, passwords, or other important information on your laptop.  Only use laptops to access a server never store personal or confidential information, instead use the laptop as a portal to see but not store information.
  5. Keep your anti-virus software and firewalls updated.  In addition, make sure that laptops are encrypted to prevent access, as well as, have encrypted hard drives.
  6. Consider laptop tracking & recovery software.  There are several programs now available that can track, locate, and remotely delete files from stolen or lost laptops.

Not convinced?, read an actual claim scenario by one of our clients.

Tags: accountants, Data Breach, Information Security

Liability Insights for Accounting Firms - Free Seminar

Posted by Tom Henell on Fri, May 20, 2011 @ 09:53 AM

Gary Sutherland, CEO of NAPLIA will be speaking on Cyber Liability and Information Security at an upcoming seminar in Massachusetts, hosted by LeClairRyan.

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Technology, government reform and new case law all play critical roles in new pitfalls for even the most well-seasoned accounting professional. A solid knowledge base can help guide you where there's no real treasure map. Where do the risk factors lie? How can emerging technologies create potential security problems? What are the audit concerns with the SEC? Feeling a little foreign to the Foreign Corrupt Practices Act or Dodd-Frank? New regulations on the ADAAA were published by the EEOC - as an employer, do you need to know more? Join LeClairRyan for this free event to better hone your strategies to manage risk.

Learn more, and Reserve your space

Tags: accountants, Data Breach, cpas, Information Security

Why Value is more important than Savings

Posted by Tom Henell on Fri, May 13, 2011 @ 11:36 AM

describe the imageSaving money is important.  We all want to maximize our bottom line, and reducing expenses (such as insurance premiums) is a key element of any businesses budgetary goals.  However, there are certain products where an initial savings in premium can be disastrous in the long-run.  Insurance is one of these products.

This is not to say that selecting the most expensive insurance premium is always in your best interest.  The point is that insurance is, at its basic, a legal contract between the carrier (insurer) and you (insured).  Too often we see clients who make the decision to select a sophisticated legal contract that potentially impacts their entire practice, based upon a flawed set of criteria; price and/or relationship.

This article will provide a high level overview on why insurance should never be purchased based on price, or relationships.

The Value of Insurance

The reason professionals purchase insurance is to protect their practice against arising from errors or omissions in delivery of professional services.  Keep in mind, a firm does not always have to make a mistake for a client to sue and you would still need a legal defense against any allegations.  A claim against your firm can;

  1. Have a financial impact for the legal defense and potential damages
  2. Have a financial impact based on lost opportunities
  3. Have a financial impact based on personnel time & resources
  4. Have a financial impact based on public relations and reputation
  5. Have an emotional impact based on concern of all of the above

Your professional liability policy is intended to mitigate the impact on your firm by providing a legal defense and indemnification for damages you may incur.  The issue is that not all professional liability policies are the same.  As previously referenced, your insurance policy is a complex legal document that contains significant conditions, definitions, exclusions, and endorsements that define, amend, and exclude potential coverage.  If you purchase your coverage based on the cheapest premium without understanding the extent of coverage provided, you are not saving money, but in fact undermining the primary reason of purchasing insurance in the first place - protection.

At minimum, prior to purchasing professional liability insurance you should be able to identify:

  1. Who is covered under the policy - (named insured)
  2. What is covered under the policy - (professional services)
  3. What is not covered under the policy – (exclusions)
  4. What endorsements modify the policy coverage – (endorsements)
  5. Any potential gaps in coverage, and alternative coverage for such
  6. The financial strength and experience of the carrier

The Value of Relationships

You might believe that since you have an insurance agent they are responsible for all of the above, and you simply rely on their recommendation.  Yes and No.

Undoubtedly, your insurance agent does owe you certain professional obligations.  However, common law dictates that once you are in receipt of your policy, it is your responsibility to read and understand the policy.  Relying solely on your insurance agent can be a costly mistake.

It is an axiom that not all agents are the same.  You may have a client who is an insurance agent and because of that relationship, provide the professional courtesy for them to handle your professional liability insurance.  This too can be a costly mistake.  Insurance agents typically are “generalists” and professional liability is outside their comfort zone and expertise.  Understanding personal or commercial insurance is vastly different from understanding the nuances of professional liability.   Because of this, a number of the leading professional liability programs are only available to “select” agents.  General agencies do not have access to the entire marketplace, limiting your options.

In addition, a specialized agency will have direct relationships with the underwriters, claims personnel, and law panels adding more clout behind your coverage.

Common sense dictates that working with an expert is the soundest strategy.  Professional liability markets and trends change frequently.  Your agent should be your partner in providing you resources and education on these trends as they happen.  In addition, your agent should be able to provide you multiple options with enough information that you can weigh the differences and make an educated decision.

Measuring your Value

As a professional, maintaining professional liability insurance is essential to protecting your practice, and providing you peace of mind.  Your decision process in selecting insurance should be based on the value that you receive, as opposed to the cost of the insurance.

  1. Does the policy cover the services that I provide?
  2. Are all of my employees, partners, independent contractors, and others (past, present, and future) covered?
  3. Is the insurance carrier financially stable, and have experience in this industry?
  4. Does my insurance agent understand my business, the industry, and have a relationship with all of the carriers who serve the market?
  5. Does my insurance agent simply provide me just a policy every year, or do they keep me updated on trends and risk management items that are beneficial to my practice?

Honestly answering the above questions will ultimately help you save money, and maximize the value of your insurance.

“Price is what you pay, value you is what you get” – Warren Buffet

Tags: accountants, professional liability

Mining for Gold in Social Media: Things Advisors need to get started.

Posted by Tom Henell on Mon, May 09, 2011 @ 03:39 PM

jessicaheadshot2.jpgThis week's blog is by guest blogger, Jessica Weiner. Jessica is the founder of The Value Quotient, which provides solutions to businesses associated with retirement plans. Every discussion begins with the same question: "What problem(s) can we help you solve?"

Mining for Gold in Social Media: Things Advisors need to get started.

When I left the corporate world and went out on my own a few years ago, I had to learn pretty fast how to get the most value for my marketing dollars. That’s how I came to be so passionate about social media marketing.

Social media marketing gets me to the right people with the right message. Best of all, it’s ridiculously inexpensive. Right people. Low cost. Done deal.

Based on my experience, here’s your shortcut to getting started on social media. “I can’t make sales so why would I do this colossal waste of time?”

The attitude among advisors and TPAs is that social media is useless as a sales tool in the retirement plan industry. Social media is not a marketing strategy unto itself; rather it is one of many tools in your overall marketing strategy, along with cold calling & networking.  “What is proven to bring in business?” says Larry Steinberg, The Steinberg Financial Group. “There are lots of strategies out there and while some may work for one person, they don’t work for others who are wired differently. What is important in my opinion is to have an overall strategy and then use the available tools to implement the strategy.Social media is a whole new tool belt.”

Many have the misperception that someone reading your LinkedIn and Twitter posts will call you and give you their business. When that doesn’t happen in the first month or two, the medium is deemed to be a failure.

“Like any other marketing, you have to commit to it and not be discouraged out of the box,” says Paul Schatz of Heritage Capital LLC. “It’s a marathon, not a sprint.” Heritage Capital has a company Facebook page, and Schatz has about 400 Twitter followers.

Step 1: Research

A baseline understanding of the Big Four — Facebook, LinkedIn, Twitter and YouTube — is key to starting on your game plan. If you are new to any of these sites, you can learn more about them by going to their home pages and reviewing the user guides, usually found under “Help” on the top or bottom of the page. You do not need an account to do so.

To see how your peers use the sites, Google phrases like “(xyz) on Facebook” or “(xyz) on Twitter.” If a business has a custom URL you can view their page without being a member of the site.

On the sites, do key word searches on terms like 401(k), retirement plan, financial advisor, and whatever else you can think of. On LinkedIn you will be looking for groups. You should join them. On YouTube, you are searching for videos. On Twitter you will “follow.”

Read and view with an eye toward assessing what works or doesn’t work for you. Additionally, ask prospects, clients, referral sources and friends which sites they use and how they use them. After a few weeks you’ll be familiar with others’ approaches:

  • Target audience 
  • Sites used
  • Type of content, such as links to articles, original writing, and market updates
  • Frequency of posts
  • Tone – personal, humorous, direct, professional 

Step 2: Call Your Compliance Department

Note: Non-producing TPAs and certain RIAs are not supervised by national level regulatory authorities such as the SEC and FINRA, but may instead be regulated at the state level.

By now, you have a general idea of what you think you want to do: which site(s), your target audience, content, and so on. Time to talk to Compliance.

By way of background, in January 2010 FINRA released Regulatory Notice 10-06: Guidance on Blog and Social Networking Web Sites. Broadly summarized, 10-06 states that the same rules apply to social networking as to all other communications with the public, including supervision, record retention, public appearances, advertising, solicitation, and so on.

Communications on social networking sites, however, do not exactly mirror traditional forms. With the media being so new, FINRA has yet to issue firm guidelines on a number of issues. Much is left to the interpretation of the supervising firms.

Even if your firm has a published social media policy, that’s not where you want to begin and end your efforts. Call and talk to Compliance, advises Stephen Selby, Director of Regulatory services for LIMRA. “Policies are written broadly. Firms don’t want to stifle sales, but they also don’t want to aggravate FINRA. Compliance’s job is to read between the lines.”

Selby also made the point that since Compliance is a service producers pay for, they should take advantage of the expertise. “The complexity of social media communications is too great, and producers should not try to tackle it on their own.”

When you contact your Compliance Department, be prepared to tell them what you are trying to accomplish and ask them to guide you. Simply calling and saying you want to use social media and asking them what to do won’t get you anywhere.

Specifics will vary from firm to firm. However, here are a few common points:

  • Communications on LinkedIn are different than those on say, Twitter or Facebook. LinkedIn is a professional site that is considered peer-to-peer, but is still subject to the same set of public communications regulations as any other form of advertising.
  • Recommendations, either for you or by you, may bump into the testimonial rules.
  • Professional and personal usage must be kept separate. For example, if you are on Facebook with friends & family, don’t mention your work or your firm name. Similarly, avoid having friends and family on a company page. 

Step 3: Risk Assessment

All of the advisors interviewed said that risk in using social media as a platform was the least of their concerns.

“In my mind, social media is very low risk. My biggest concern is putting something out there that is factually incorrect or shows very flawed reasoning. What goes on the internet stays on the internet. Much of what I post is opinion, so that minimizes the concern about something being factually incorrect. I also try to steer clear of any topics that are overly inflammatory. I want to initiate positive discussion, not stir the pot”, said Adam Pozek, Compliance & Consulting Partner with DWC ERISA Consultants, LLC. Pozek writes a blog called Pozek on Pension, and has 600 Twitter followers.

Also, keep in mind that if someone posts something negative about you on one of your own pages, you have the power to remove it.

Ironically, the larger risk exists right now, for every firm, through their other hat as employer, according to Russ Dempsey, Vice President & Chief Legal Officer, United Retirement Plan Consultants.

“The risk is when employees cross the line and harass other employees, reveal confidential information without approval, and what they do to the employer’s reputation in off-hours,” says Dempsey. “The claims that are out there today are for hostile work environment, defamation, and discrimination.”

“Additionally, in hiring or disciplining, employers will go out to social media and obtain protected information such as religious affiliation. It’s illegal to make employment decisions based on information obtained through social media.”

Businesses must address employees’ social media usage either through a confidentiality agreement, employment agreement, or the employee handbook.

Success Stories

Those that engage in social media marketing, first and foremost, enjoy it. They also believe that the power of name recognition and branding contribute significantly to success.

Having said that, yes, there is business attributable to an effective social media presence.

“I have actually won business from my blog,” says Pozek. “One of my posts was about the IRS reduced VCP fee for non-amenders who voluntarily corrected within a certain timeframe. A small business owner in California came across that entry and e-mailed me with questions. Two or three e-mails later, I was hired to help them fix their problem. With that said, my goal with social media is to build name recognition. I do not expect to directly win business, so the California client was a bonus. I regularly have people come up to me at conferences and introduce themselves as having followed my social media activity. It’s really like just about any type of marketing…it’s branding.”

Jeff Rose, who has nearly 2,000 Twitter followers and writes a blog called “Good Financial Cents” says, “At the end of the day, it’s all about 2 things for me: 1. Increase my exposure to get in front of more prospects 2. Bring on new ideal clients.

“I was blogging for about 3 months before I was able to leverage my blog to land a recurring spot on our local news station. It was another 3 months before I attained my first client from my blogging efforts. That client was and still is my largest client and is also my friend on Facebook.” Larry Steinberg of Steinberg Financial has 1,000 Twitter followers. His value assessment is both financial and emotional, something we can all relate to: “The two main items I will measure at the end of this year are gross income and my mental state and work it out from there.”

Visit NAPLIA's Social Media Risk Management Resources