Attorney–Client Privilege in Jeopardy in Insurance Litigation

Strategies for Preserving Confidential Communications

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


Conducted on Tuesday, March 11, 2008

Program Materials

Description

Recent court decisions allowing discovery of attorney–client communications in certain insurance lawsuits have shaken the sanctity of the privilege. Insurance disputes give rise to unique areas of concern over protecting the confidentiality of such communications.

Because insurance attorneys often become involved during the claims process—for coverage advice or to assist with investigations, pre-litigation communications 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, while attorneys for policyholders argue that attorneys who participate in insurance investigations are not providing legal advice but are acting as claims agents.

Listen as our authoritative panel of insurance law specialists examines the attorney–client privilege in insurance litigation, the role of the attorney working for insurers, and strategies to maintain and protect the privilege.

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Outline

  1. Overview of the attorney–client privilege in insurance litigation
    1. Asserting the privilege
    2. Timing/duration
    3. Waiver of the privilege in insurance litigation
  2. Exceptions to the privilege
    1. Bad faith exception
    2. Crime–fraud exception
    3. Legal capacity doctrine
  3. Tripartite relationship issues
    1. Joint client exception
    2. Communications between insured and its defense counsel
  4. Role of attorney
    1. Business function v. legal advice
    2. Claims handling v. coverage counsel
    3. Other types of insurance company communications
  5. Strategies/best practices for preserving the privilege
    1. Use of expert witness
    2. Remain mindful that legal advice may be discoverable under certain circumstances
    3. Inform insurer that communications may be discoverable
    4. Decide early whether to assert the advice of counsel defense in a bad faith case
    5. Request in camera inspection of documents rather than allowing blanket production
    6. Consider bifurcation of contract and bad faith claims and move to stay discovery in bad faith action pending resolution of contract claim

Benefits

The panel reviewed 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?

Faculty

John S. Vishneski, III
John S. Vishneski, III
Reed Smith Sachnoff & Weaver

He is in the firm's Insurance Recovery Group and represents policyholders in insurance coverage disputes with property...  |  Read More

Laura A. Foggan
Laura A. Foggan

Partner
Wiley Rein

She co-chairs the firm’s Appellate Practice and is a member of the Insurance Practice. She advises and represents...  |  Read More

David M. Greenwald
David M. Greenwald

Partner
Jenner & Block

Mr. Greenwald is a tested trial lawyer with over 27 years of commercial litigation, domestic and international...  |  Read More