Attorney-Client Privilege in Broker-Policyholder Communications: Maintaining or Attacking Confidentiality

Navigating Privilege Waiver, Common Interest Doctrine, Claims Assistance Agreements and More

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


Conducted on Thursday, December 10, 2015

Recorded event now available

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Program Materials

This CLE webinar will discuss the scope of the attorney-client privilege for communications between policyholders and their brokers, recurring scenarios in which waiver may occur, and the common interest exception, which protects disclosures to third parties. The program will discuss steps policyholders can take to protect the privilege, including the use of claims assistance agreements, as well as arguments for insurers to attack and pierce the privilege.

Description

It is common and beneficial for policyholders to rely on their brokers for assistance in resolving contested claims, coverage issues and litigation. During this engagement, brokers may be privy to privileged information about the policyholder’s legal views, coverage litigation strategy and other confidential information imparted in the course of receiving legal advice.

Confidential and sensitive information and work product shared with brokers is at risk of discovery by insurers in a coverage dispute or by plaintiffs in an underlying liability suit. Case law regarding broker-policyholder communications is inconsistent and is state specific. Arguments for protecting such communication include showing that the broker is an agent or employee of the policyholder and the common interest doctrine.

In an effort to protect the privilege, brokers may use claims assistance agreements when they are engaged by policyholder clients to assist in claims resolution or litigation. While helpful, these agreements are not foolproof and offer risks for policyholders and avenues of attack by insurers and other third parties.

Listen as our authoritative panel of insurance practitioners analyzes the attorney-client privilege for insurance broker/policyholder communications and common and inadvertent ways privilege waiver occurs. The panel will present arguments and steps for policyholders to protect the privilege, including the use of claims assistance agreements, as well as arguments for insurers and third-party plaintiffs to attack and pierce the privilege.

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Outline

  1. Scope of the attorney-client privilege for broker/policyholder communications
  2. Arguments for policyholders to shield confidentiality of privileged information
  3. Arguments for insurers and third-parties to obtain discovery of confidential information and work product
  4. Latest case law developments

Benefits

The panel will review these and other key issues:

  • What are the recent case law developments regarding the existence and scope of the attorney-client privilege for broker/policyholder communications?
  • What are the most effective arguments for, or steps policyholders can take, to protect privileged communications with insurance brokers?
  • What are the most effective arguments for insurers and third-party plaintiffs to obtain discovery of alleged privileged communications between policyholders and their insurance brokers?
  • What are the pros and cons of claims assistance agreements with brokers and what risks are inherent in these agreements?

Faculty

John B. Harris
John B. Harris

Partner
Frankfurt Kurnit Klein & Selz

Mr. Harris has more than 25 years of experience representing clients in high stakes civil matters and white collar...  |  Read More

Michael Lichtenstein
Michael Lichtenstein

Partner
Lowenstein Sandler

For the past 20 years, Mr. Lichtenstein has focused his practice exclusively on insurance and environmental issues. In...  |  Read More

Brian S. Scarbrough
Brian S. Scarbrough

Partner
Jenner & Block

Mr. Scarbrough represents corporate policyholders in disputes with insurers and has significant experience both in...  |  Read More

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