Attorney-Client Privilege in Bad Faith Litigation: Privilege Issues From Perspectives of Policyholders and Insurers

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, August 9, 2017

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to policyholder and insurer counsel on the tripartite nature of attorney-client privilege between the insurer, the insured and the attorney representing the insured, and discuss attorney-client privilege as it may apply in any subsequent bad faith claim. The program will offer best practices for policyholders seeking to attack the assertion of privilege and insurance defense counsel to successfully assert privilege.


In insurance bad faith cases, the issue of attorney-client privilege is of serious concern. Courts have articulated various tests for determining when the privilege exists and how it may be waived.

Policyholders in bad faith cases seek to show that the privilege does not apply to the documents, information and testimony sought or that the privilege has been waived. Counsel for insurers counter these arguments by steering clear of the common pitfalls, such as a defense based on the advice of counsel or situations where an attorney acted as a claims adjuster during the claim investigation.

Listen as our authoritative panel of both policyholder and insurer counsel analyzes the attorney-client privilege in the context of the tripartite relationship, the issue of implied waiver of the privilege in subsequent bad faith claims, and best practices for both plaintiff’s counsel and defense counsel to either pierce or protect the privilege in bad faith litigation.



  1. Overview of the attorney-client privilege in the tripartite relationship
  2. Implied waiver of the privilege in bad faith litigation
  3. Piercing the privilege: plaintiff perspective
  4. Defending or maintaining the privilege: defense perspective


The panel will review these and other key issues:

  • Has there been a trend toward the erosion of the attorney-client privilege in bad faith litigation?
  • What tests do courts use to determine whether there has been an implied waiver of the privilege?
  • How have courts applied the joint defense exception to the attorney-client privilege in bad faith claims?


Corbett, John
John L. Corbett

Of Counsel
Barnes & Thornburg

Mr. Corbett’s practice focuses on insurance recovery in the construction industry. He is also experienced in...  |  Read More

Jacobus, Alan
Alan P. Jacobus

Lafayette & Kumagai

Mr. Jacobus' practice over the past decade has largely centered on high risk, high value insurance coverage...  |  Read More

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