Claims against employment lawyers have increased since the pandemic, according to LawPro (the professional indemnity insurer for lawyers in Ontario).[i]
Professional malpractice claims often arise as a result of lawyers providing advice on matters that are outside of their area of expertise. For employment lawyers, this often includes the area of long-term disability law, which is rife with potential pitfalls. There has been a recent proliferation of lawyers practicing in the LTD field, and employment lawyers have increasingly become a target of litigation.
One area of risk that I often see is the employment lawyer’s failure to protect their disabled client’s group long term disability benefits when entering into termination agreements and finalizing Full and Final Releases. These Releases often exclude liability for payments related to “benefit coverage under the Company’s applicable plans and/or policies … including short-term or long-term disability benefits.” Failure to ensure these benefits are kept intact for clients who are suffering from disability can result in liability against employment lawyers. Indeed, it is important to tread carefully before settling a client’s employment case if they are suffering from a disability and have not yet applied for disability benefits.
One simple solution to protect your clients’ benefits is to have an experienced LTD lawyer review the Release before it is finalized and signed. Taking this step will also help to protect you from potential professional negligence claims. A qualified LTD lawyer will be attuned to the seemingly small details and nuances that can have a significant impact on your client’s future access to benefits, or ability to sue if they are already on claim but receive a denial of benefits in the future.
Speaking from experience, I prefer helping my employment law colleagues early in the process, rather than hearing about these issues when it is too late. I would be happy to review, at no cost, any Full and Final Release related to an employment settlement and its potential impact on your client’s LTD coverages and benefits. Please send me an email at bmoscato@hshlawyers.com if you would like my help.
Brad Moscato is the head of Howie, Sacks & Henry LLP’s Long-Term Disability practice. Brad is the former Chair of the Ontario Trial Lawyers Association (OTLA) LTD Section. He also holds membership and leadership roles in several legal and community organizations, and is regularly invited to chair, or speak and lecture at educational events and seminars. Brad is certified by the Law Society of Ontario as a Specialist in Civil Litigation and he is recognized as a leading personal injury lawyer in The Best LawyersTM in Canada. Brad can be reached at 416-646-7655 or bmoscato@hshlawyers.com.
[i] See LawPro Annual Report, 2020, page. 8.
