Attorney–Client Privilege in Insurance Disputes

Description

Court decisions that allow the discovery of attorney–client communications in certain insurance lawsuits have shaken the sanctity of the privilege.

Insurance disputes trigger unique areas of concern over protecting the confidentiality of communications. Insurance attorneys often become involved during the claims process — for coverage advice or to assist with investigations — so, pre-litigation communications may end up subject to discovery.

Some courts ruled that the privilege was waived in bad faith suits where the insurer relies on an advice of counsel defense, while attorneys for policyholders argue that attorneys who participate in insurance investigations are not providing legal advice but are acting as claims agents.

Listen as our authoritative panel of insurance law specialists examines the attorney–client privilege in insurance litigation, the role of the attorney working for insurers, and strategies to maintain and protect the privilege.

Outline

1. Overview of the attorney-client privilege in insurance litigation
   1. Asserting the privilege
   2. Timing/duration
   3. Waiver of the privilege in insurance litigation
2. Exceptions to the privilege
   1. Bad faith exception
   2. Crime-fraud exception
   3. Legal capacity doctrine
3. Tripartite relationship issues
   1. Joint client exception
   2. Communications between insured and its defense counsel
4. Role of attorney
   1. Business function v. legal advice
   2. Claims handling v. coverage counsel
   3. Other types of insurance company communications
5. Strategies/best practices for preserving the privilege
   1. Use of expert witness
   2. Remain mindful that legal advice may be discoverable under certain circumstances
   3. Inform insurer that communications may be discoverable
   4. Decide early whether to assert the advice of counsel defense in a bad faith case
   5. Request in camera inspection of documents rather than allowing blanket production
   6. Consider bifurcation of contract and bad faith claims and move to stay discovery in bad faith action pending resolution of contract claim

Benefits

The panel will review these and other key questions:

• What kinds of privilege challenges face attorneys who work with insurance companies on claims disputes and litigation?
• How does the role of the attorney undermine the privilege and sometimes lead to unintended waiver?
• What are some exceptions to attorney–client privilege that arise in insurance disputes?
• What are the best practices for insurers' attorneys to protect the privilege?

CLE Credit

Strafford's live seminars qualify for CLE in every state that accredits webinars. They offer you a high quality, cost effective, and convenient CLE option, with no lost travel time or expenses.

More Details>