In evaluating whether the facts or circumstances merit disclosure as a potential claim, there are both a subjective and an objective component. The subjective component depends on what the attorney actually knows. The objective component requires disclosure of facts or circumstances that a reasonable attorney would realize might lead to a claim.
Who must answer?
The key language here is: "after inquiry of each lawyer." Other times, it is "persons proposed for coverage." In either situation, as this language suggests, the question requires an inquiry of every other attorney in the firm or every person proposed for coverage. Specifically, the question involves inquiry of attorneys other than those involved in actually completing the application. (For example, in a recent case, Axis Insurance Co. v. Farah & Farah, P.A., 2013 WL 216067 (11th Cir. Jan. 18, 2013), the Eleventh Circuit held that "persons proposed for coverage" even extends beyond present members of the firm and includes lawyers previously associated with the firm who were insured under the policy.)
So, be careful and get it right. No law practice wants to discover it has a problem with its application after a claim comes.
J. Randolph Evans and Shari L. Klevens are the authors of Georgia Legal Malpractice Law, published by Daily Report Books. J. Randolph Evans is a partner in McKenna Long & Aldridge's Atlanta office, where he is the chairman of the financial institutions practice. shari l. klevens is a partner in McKenna Long & Aldridge's Washington office and is the managing chairwoman of the firm's law firm defense practice.