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 video webinar with Q&A

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Conducted on Tuesday, June 14, 2022

Recorded event now available

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Course Materials

This CLE course 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 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 act as claims agents and do not provide legal advice. Policyholder counsel often seek communications between the insurance company and its reinsurer, including reports and coverage or claims counsel communications.

Beyond those issues, serious legal ethics issues arise from 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 maintaining and protecting 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

DePekary, Denise
Denise Marra DePekary

Partner, Co-Chair of the Insurance Group
Weber Gallagher Simpson Stapleton Fires & Newby

Ms. DePekary represents insurance companies on a national level in claims involving Directors and Officers (D&O),...  |  Read More

Devlin, Kathleen
Kathleen J. Devlin

Partner
Weber Gallagher Simpson Stapleton Fires & Newby

Ms. Devlin is an experienced litigator who provides advice to insurers and litigates coverage issues relating to...  |  Read More

Villaverde, April
April T. Villaverde

Partner
Hinshaw & Culbertson

Ms. Villaverde concentrates her practice in insurance coverage litigation and counseling. For over a decade, she...  |  Read More

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