Attorney–Client Privilege in Insurance Disputes

Description

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—making some pre-suit communications subject to discovery.

Some courts have ruled that the privilege has been waived in bad faith suits where the insurer relied on an advice-of-counsel defense. However, policyholder counsel argues that when lawyers participate in insurance investigations, they are not providing legal advice but are acting as claims agents.

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 maintain and protect the attorney-client privilege.

Outline

1. Overview of the attorney-client privilege in insurance litigation
   1. Asserting the privilege
   2. Timing/duration
   3. Basic problem – disclosing outside atty-client relationship, where privilege questions come up
   4. Common interest doctrine
   5. Waiver of the privilege in insurance litigation
2. Tripartite relationship issues and exceptions to privilege
   1. Bad faith exception
   2. Joint client exception
   3. Communications between insured and its defense counsel
3. 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 counsel to insurance companies on claims disputes and litigation?
• How does the role of the insurance company lawyer undermine the attorney-client privilege and sometimes lead to unintended waiver?
• What are some exceptions to the attorney-client privilege that arise in insurance disputes?
• What are the best practices for insurers' counsel to protect the attorney-client privilege?

Webinar/Teleconference

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