Attorney-Client Privilege in Insurance Disputes: Preserving Confidentiality, Meeting Legal Ethics Standards

Waiver and Exceptions to the Privilege, the Tripartite Relationship, and the Role of Counsel in Claims Handling and Litigation

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


Conducted on Wednesday, January 22, 2020

Recorded event now available

or call 1-800-926-7926
Program Materials

This CLE webinar will guide insurance counsel on steps to protect confidential communications and preserve the attorney-client privilege. The panel will discuss waiver and exceptions to the privilege, the interplay with reinsurance and reporting to reinsurers, the tripartite relationship, the role of lawyers in the context of insurance disputes, and relevant legal ethics standards.

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--which raises the question of whether pre-suit communications are subject to discovery. Additionally, insurance counsel or their reports may be subject to reporting to reinsurers.

Some courts have ruled that the privilege is waived in bad faith suits where the insurer relies on an advice-of-counsel defense. Policyholder counsel argue that when lawyers participate in insurance investigations they are acting as claims agents and not providing legal advice. Policyholder counsel often seek communications between the insurance company and its reinsurer, including reports and communications from coverage or claims counsel.

Beyond those issues, serious legal ethics issues arising out of the attorney's requirement of undivided loyalty to the client. Insurance defense counsel must be transparent about his role from the outset.

Counsel must determine whether he will be able to provide the insured a vigorous and uncompromised defense, immediately disclose any potential conflicts, and obtain the fully informed consent of the insured to proceed. Insurance defense counsel may, in some cases, be required to recommend independent counsel.

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.

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Outline

  1. Overview of the attorney-client privilege in insurance litigation, including the interplay with reinsurance
  2. Tripartite relationship issues and exceptions to privilege
  3. Best practices for preserving the privilege
  4. Meeting legal ethics standards and guidelines when serving as insurance defense counsel

Benefits

The panel will review these and other key issues:

  • What privilege challenges do counsel to insurance companies face on claims disputes and litigation?
  • How does the role of the insurance company counsel undermine the attorney-client privilege and sometimes lead to an unintended waiver?
  • What are some exceptions to attorney-client privilege that arise in insurance disputes?
  • What are best practices for insurers' counsel to protect the attorney-client privilege?
  • What are insurance defense counsels' legal ethics obligations to the insured, and how can counsel ensure strict compliance with applicable ethics standards?

Faculty

Gajadharsingh, Adam
Adam Gajadharsingh

Attorney
Barnes & Thornburg

Mr. Gajadharsingh has handled general corporate, class action, insurance defense, breach of contract, and unfair...  |  Read More

Hunter, Travis
Travis S. Hunter

Director
Richards Layton & Finger

Mr. Hunter is a trial lawyer who has successfully handled cases in all of Delaware’s state and federal courts,...  |  Read More

Schiffer, Larry
Larry P. Schiffer

Partner
Squire Patton Boggs (US)

Mr. Schiffer practices in the areas of commercial, insurance and reinsurance litigation, arbitration, and mediation. He...  |  Read More

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