This CLE course will guide insurance counsel on steps to protect confidential communications and preserve the attorney-client privilege. The panel will discuss waiver and exceptions to the privilege, the interplay with reinsurance and reporting to reinsurers, the tripartite relationship, the role of lawyers in insurance disputes, and relevant legal ethics standards.
Insurance disputes trigger unique areas of concern in protecting the confidentiality of client communications. Insurance counsel often become involved during the claims process--for coverage advice or to assist with investigations--which raises the question of whether pre-suit communications are subject to discovery. Additionally, insurance counsel or their reports may be subject to reporting to reinsurers.
Some courts have ruled that the privilege is waived in bad faith suits where the insurer relies on an advice-of-counsel defense. Policyholder counsel argue that when lawyers participate in insurance investigations, they act as claims agents and do not provide legal advice. Policyholder counsel often seek communications between the insurance company and its reinsurer, including reports and coverage or claims counsel communications.
Beyond those issues, serious legal ethics issues arise from the attorney's requirement of undivided loyalty to the client. Insurance defense counsel must be transparent about his role from the outset.
Counsel must determine whether he will be able to provide the insured a vigorous and uncompromised defense, immediately disclose any potential conflicts, and obtain the fully informed consent of the insured to proceed. Insurance defense counsel may, in some cases, be required to recommend independent counsel.
Listen as our authoritative panel of insurance law specialists examines confidential attorney communications in insurance claims and suits, the role of counsel when working for insurers, and approaches to maintaining and protecting attorney-client privilege.
