Attorney-Client Privilege in Jeopardy in Insurance Litigation

The sanctity of attorney-client privilege has been shaken by court decisions allowing discovery of attorney-client communication in the context of certain insurance lawsuits. Attorneys and clients must always be conscious of preserving the privilege, but insurance disputes gives rise to unique areas of concern.

In insurance cases, counsel often become involved prior to litigation, during the claims process – for coverage advice or to assist with investigations. These pre-litigation communications often end up subject to discovery.

Some courts have found the privilege waived in bad-faith suits where the insurer relies on an advice-of-counsel defense – sometimes even without that defense being raised. Insured's counsel also argue that attorneys who participate in insurance investigations are not providing legal advice but are acting as adjusters whose communications with the insurer are not privileged.

Listen as our authoritative panelists examine the attorney-client privilege in insurance litigation, the role of the attorney working for insurers, and best practices for preserving the privilege in insurance cases.

Paul Karlsgodt, Partner, Baker Hostetler, Denver, practices commercial litigation. A significant portion of his work involves representation of major insurance companies in nationwide and statewide consumer class action lawsuits and related litigation.

Alan Martin, Partner, Mayer Brown Rowe & Maw, Chicago, concentrates on complex insurance coverage and general commercial litigation. His practice includes insurance program development, claim assistance and negotiation, coverage litigation, and arbitration, including large-scale property damage and business interruption/extra expense claims.

Andrew G. Wanger, Partner, Duane Morris, San Francisco, practices in the areas of business litigation and the defense of professional liability claims. He handles arbitrations, mediations and trials, including complex insurance coverage matters, product liability cases, professional liability claims, employment cases and numerous breach of contract actions.

They will address 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?

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